HKSAR v. PUN WING YU

CACC 109/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 109 OF 2013

(ON APPEAL FROM HCCC 293 of 2012)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the Court):

1. The applicant pleaded guilty before Deputy Judge Geiser to one count of unlawfully trafficking in 51.96 grammes of a crystalline solid containing 50.19 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded not guilty to a second count of trafficking in 900 tablets containing 90.16 grammes of ketamine and 1.32 grammes of methamphetamine, which count was ordered to be left on the file, marked not to be proceeded with without leave of the court.

2. In respect of Count 1, the applicant received a sentence of 5 years eight months’ imprisonment.  She now applies for leave to appeal against her sentence.

The facts

3. At 5:47 pm on 7 March 2012, a team of police officers conducting an anti-dangerous drugs operation at Aquamarine, a private housing estate in Cheung Sha Wan, Kowloon, intercepted a private car.  A man called Lam was driving and the applicant was in the rear seat holding a baby and carrying a handbag.  The two occupants of the vehicle were both searched and in the applicant’s handbag were found a purse, containing three packets of what is commonly known as “Ice”, and a plastic bag containing more “Ice”.  The applicant was immediately arrested and cautioned for possession of dangerous drugs.  Initially, she claimed that the drugs were not hers but belonged to Lam. The quantity of “Ice” in the applicant’s handbag amounted to 43.35 grammes of a crystalline solid containing 41.96 grammes of methamphetamine hydrochloride. 

4. The applicant was taken to her home in the Aquamarine development where more “Ice” was found in the kitchen, as well as 900 tablets of ketamine in the sitting room.  Upon further arrest and caution, she made no admissions.  The “Ice” found in the applicant’s kitchen amounted to 8.61 grammes of a crystalline solid containing 8.25 grammes of methamphetamine hydrochloride.

5. When the applicant was video interviewed at the police station later that night, she admitted that the “Ice” in her handbag in fact belonged to her and that she was about to deliver two packets of the drug to a friend for $500.  She claimed the 900 tablets of ketamine at her home had been left behind by a friend who was moving house.  She refused to answer further questions about the “Ice” in the kitchen.

6. The total amount of “Ice” in her handbag and in the kitchen of the premises was, for sentencing purposes, 50.19 grammes of methamphetamine hydrochloride narcotic, with a retail value of $40,944.

Mitigation

7. The applicant, who is now 27 years of age and the mother of two very young children, aged 2 years and 1 year respectively, had 8 previous appearances before the courts; three of them concerned with the possession of dangerous drugs.  She was unemployed at the time of the offence.

8. In mitigation, the judge was told by counsel acting on her behalf that Lam, the driver of the vehicle and the father of her two children had, since her arrest, been himself sent to prison for 32 months. Furthermore, whilst on remand for the present offence, the applicant had given birth to the second of her two children.  Both children were in fact with her while in custody and would remain with her in prison until they were 3 years old.  That, as we understand it, is still the position today.

Sentence

9. The judge adopted a starting point of 8½ years’ imprisonment for the quantity concerned and discounted the sentence by a third resulting in a sentence of 5 years eight months’ imprisonment.

10. If one were being strictly mathematical according to the tariff guidelines in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, the starting point for sentence for 50.19 grammes of methamphetamine hydrochloride narcotic would have been in the region of 9 years’ imprisonment.  No doubt the judge was influenced by the fact that the applicant had just given birth whilst on remand and that the father of both of her children had since her arrest himself been sent to prison for unrelated offences.  The starting point was within the judge’s sentencing discretion.

The appeal

11. Before us this morning, the applicant has repeated those matters of mitigation and urged that we reduce her sentence so that she will be able to take care of her youngest child, who can only remain with her in prison until her third birthday, which falls on 11 September 2015.  We are informed that the applicant’s earliest release date is 6 March 2016, which means that there will be a 6 month shortfall when the child cannot be cared for by her in prison.  We would be surprised if there were not some discretion or flexibility in the Correctional Services Department arrangements in such circumstances, so as to enable the child to remain with the applicant until her release.  However, even if there is no such discretion or flexibility, the applicant has her family members, who are prepared to look after the eldest child when she turns three years old.

12. In any event, the fact remains that when the applicant was committing this offence, not only was she holding one child in the back of the private car, but she must have known she was pregnant with the other child.  Yet, she was still prepared to commit this very serious offence.

13. As we have said, the sentence was already lower than that warranted by a strictly mathematical application of the tariff to the quantity concerned.  The points made by the applicant about her two young children and the subsequent incarceration of their father have already been taken into account and reflected in her sentence.  We see no proper reason for a further reduction of her sentence.

Conclusion

14. The application for leave to appeal against sentence must be refused.