HKSAR v. HO KIN LING

CACC285/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 285 OF 2009

(ON APPEAL FROM HCCC 116 OF 2009)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Hon Saw J :

1. On 15 June 2009 the applicant pleaded guilty to one charge of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  Deputy Judge Mackintosh, as he then was, sentenced her to a term of imprisonment of 5 years and 4 months having adopted a term of 8 years’ imprisonment as his starting point and giving to the applicant a one-third discount to accommodate her plea of guilty.

2. This is her application for leave to appeal that sentence.

3. The particulars of the charge alleged that she on 13 October 2008 at the junction of Nam Cheong Street and Apliu Street, Sham Shui Po, unlawfully trafficked in a dangerous drug namely 27.26 grammes of a crystalline solid containing 25.46 grammes of methamphetamine hydrochloride.  A drug commonly referred to as “ice”.

4. The summary of facts admitted by the applicant revealed that at about 2:30 p.m. on 13 October 2008 the applicant and another woman were arrested by police officers as they were sitting in a taxi.

5. Both women were searched the applicant was found to be in possession of dangerous drugs in a plastic bag which was concealed in her underwear.  The drugs were those particularised in the indictment.  The applicant told the police officers that she was to be paid $3,000 to deliver the dangerous drugs to the Nam Shan Estate.  The quantity of drugs she was carrying had a street value in excess of $15,000.

6. The applicant is 32 years of age.  She has a raft of criminal convictions dating back to 1995—when she was just 17.  Many of those are drug related.  She was last released from the Hei Ling Chau Drug Addiction Treatment Center on 10 September 2008—two months before she committed this offence.

This application

7. The applicant takes no issue with the starting point of 8 years that the judge adopted.  Her complaint is that insufficient credit was given for the assistance she provided to the authorities subsequent to her arrest and prior to her being sentenced.

8. It was accepted on her behalf at the time of sentencing that such assistance that she had provided was of no use to the relevant authorities.  That being the case she was not entitled to have it taken into account by the judge in his determination of the appropriate discount to be given her from the starting point of 8 years.

9. The situation remains the same today.

10. The applicant suggests to us that she has made up her mind to reform herself.  We trust that this will occur but it is not a mitigating factor in the circumstances of the commission of this offence and the sentence passed.

11. There were no other matters advanced in mitigation which would have justified a discount in excess of the one third given.

12. The applicant’s personal circumstances and the fact that her two young children have been placed in foster care is not, given the applicant’s background and the nature of her offence, a matter that could properly impact upon her sentence.  Her expressed willingness to assist the authorities in the future may or may not bear fruit but at this stage there is no warrant to alter her sentence by reason of this.

13. There is to my mind no merit in the application and I would dismiss it.

Hon Tang VP :

14. I concur.  The application for leave to appeal sentence is dismissed.