HKSAR v. CHENG LAI YEE

CACC 153/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2002

(ON APPEAL FROM DCCC 1009 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of two counts (charges 2 and 3) of trafficking in a quantity of dangerous drugs after a trial in the District Court before Deputy Judge Mierczak and was sentenced to a total of 51/2 years' imprisonment. She seeks leave to appeal against her convictions and sentences which were imposed.

2. In the first count, a man, who was the 1st defendant at the trial below, was charged with trafficking in the same heroin, the subject of count 2. He was found guilty of being in simple possession.

3. Police officers were keeping premises in Cheung Wah Street under surveillance. At about 6.57 p.m. one of the officers saw the applicant place a plastic bag in close proximity to a mailbox at the premises. She left after this.

4. She was followed by one of the officers and when she got to a shop in Un Chau Street and was preparing to enter it the officer apprehended her. According to the officer the applicant said, "Ah Sir, I know I was wrong. I sold the white powder as I have no money to pay the rent. Please give me a chance."

5. Shortly after this the 1st defendant arrived at the Cheung Wah Street premises and took possession of the package which had been left there.

6. The quantity of dangerous drugs involved was 11.33 grammes of a mixture containing 8.21 grammes of heroin hydrochloride.

7. The officers then searched the premises occupied by the applicant. They found three plastic bags containing what the officers suspected to be dangerous drugs, electronic scales and a pile of plastic bags. They asked the applicant what these were and she said that the white powder belonged to her and had nothing to do with her husband and children. They were for her own consumption and for sale.

8. She was taken back to the police station where a confirmatory cautioned statement was obtained. The dangerous drugs found in the premises consisted of 17.18 grammes of a mixture containing 12.58 grammes of heroin hydrochloride.

9. At her trial the applicant denied having told the police officers that she had intended to sell any of the dangerous drugs in question.

10. She said that the only reason why she had made the cautioned statement was that the officers had assured her that if she made the statement she would be immediately released and could attend to her husband and two children aged 12 and 8. She had said that the dangerous drugs had only been for her own consumption.

11. The Judge was satisfied that the applicant's statement had been made freely and voluntarily and admitted it as evidence.

12. When giving evidence on the general issue, the applicant said that when she had attended at the Cheung Wah Street premises she had been unsuccessfully attempting to collect some dangerous drugs for her own consumption. The Judge disbelieved this evidence.

13. There was ample evidence to support these convictions.

14. In her grounds of appeal the applicant states that she was discontented with the result of the trial and that the sentence imposed was too long.

15. She also refers to the fact that her co-defendant who was charged with trafficking in dangerous drugs was only convicted as being in possession. This is true. However in his case there was no evidence that he had been in possession of paraphernalia such as the scales and plastic bags which were found to be in her possession and her co-defendant had made no admission to trafficking. Accordingly the situation was entirely different in each case.

16. Nothing which has been said by the applicant would indicate to us that these convictions were in any way unsafe or unsatisfactory. The application for leave to appeal against the convictions is dismissed.

17. So far as sentence is concerned the total amount of narcotic content was slightly in excess of 20 grammes. According to the accepted guideline referred to in Lau Tak-ming a sentence in the region of 5 to 6 years' imprisonment was appropriate.

18. The Judge adopted a starting point of 5 years 9 months and reduced this by 3 months on account of the fact that at that time the applicant was in an advanced state of pregnancy. He passed sentences of 5 1/2 years on each count and ordered that they be served concurrently.

19. Although in the circumstances of this case it makes no difference the approach adopted by the Judge was flawed. What he should have done was to pass appropriate sentences on each of the counts and then, by ordering that part of the sentences should be served concurrently, adjust the sentences so as to reflect the appropriate overall sentence having regard to the total amount of dangerous drugs involved.

20. Adopting this approach the proper sentence on the second count should have been 4 years 9 months' imprisonment and on the third 5 years 3 months. He should then have ordered that the sentence on the second count should be served consecutively, to the extent of 3 months, to the sentence of 5 years and 3 months on the third count, thus achieving the total sentence of 5 1/2 years imprisonment.

21. The application relating to sentence is allowed and treating it as the appeal we modify the sentences imposed as indicated. However, the total sentence the applicant must serve remains the same.