HKSAR v. PUJI ASTUTIK

CACC 60/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 60 OF 2017

(ON APPEAL FROM HCCC NO 157 OF 2016)

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J U D G M E N T

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1.  On 6 March 2017, the applicant was convicted on her own plea before Madam Justice Pang (“the judge”) of a single count of trafficking on 2 August 2015 in 20.7 grammes of a crystalline solid containing 20.4 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, she was sentenced to a term of 5 years’ imprisonment.

2.  On 16 March 2017, the applicant filed a Notice of application for leave to appeal (Form XI) and now seeks leave to appeal against her sentence.

The facts

3.  On 2 August 2015 at 5:23 pm, a team of police officers were patrolling in Temple Street, Yau Ma Tei, when they saw the applicant walking towards Temple Street along Wing Sing Lane and intercepted her for inquiries.  The applicant informed the officers that she was not carrying any identification, having left her Indonesian passport at home.

4.  Upon a search of the applicant’s black handbag, two re‑sealable plastic bags containing suspected dangerous drugs were found.  The applicant was duly arrested and, under caution, replied that the dangerous drugs were for her own consumption.  In a subsequent record of interview, she further claimed that she had overstayed in Hong Kong and was unemployed.

5.  Analysis of the contents of the two plastic bags subsequently revealed that the substance was 20.7 grammes of a crystalline solid containing 20.4 grammes of “Ice”.  The retail value of the dangerous drugs at the time of seizure was estimated at HK$6,810.

6.  By pleading guilty and admitting the facts of the case, the applicant admitted that she was trafficking in the dangerous drug found in her possession upon arrest on 2 August 2015.

Mitigation

7.  The applicant, an Indonesian national, was 32 years old at the time of her sentence.  She had come to Hong Kong to work as a domestic helper in August 2009.  Her contract of employment having been terminated in 2010, she continued to remain in Hong Kong illegally and worked on a casual basis earning about HK$10,000 per month.

8.  Counsel for the applicant at the sentencing hearing contended that the applicant had committed the present offence in order to fund the medical expenses of her mother, who was suffering from liver cancer. It was submitted that a friend, knowing that the applicant was in need of money, had asked her to carry the dangerous drugs for a reward of HK$3,000.  However, the applicant had been arrested before being paid.  In a mitigation letter submitted to the court, the applicant said she was remorseful and further explained her financial obligation to fund her mother’s surgery.

Reasons for sentence

9.  Having considered the quantity of the dangerous drug involved and the mitigation put forward on behalf of the applicant, the judge stated that the appropriate starting point should be 7½ years’ (or 90 months’) imprisonment, in accordance with the guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The judge then reduced the starting point by a full one-third discount to 5 years’ (or 60 months’) imprisonment because of the applicant’s timely guilty plea.  The judge said that, while the court was sympathetic to the applicant’s domestic and family circumstances, there was nothing in her mitigation that would warrant any further reduction in sentence.

Grounds of appeal against sentence

10.  In her initial ground of appeal attached to her Form XI, the applicant simply stated that her sentence was “too much”, as a result of which she felt that she had to appeal against her sentence. Before me today, however, the applicant applied for an adjournment on the vague pretext that she wanted to find “proof” that other inmates charged with trafficking in similar quantities of “Ice” had been dealt with more leniently than she was.

11.  The offence to which the applicant pleaded guilty was committed more than 2 years ago.  She was sentenced almost 6 months ago.  Yet she is still unable to do any more than advance the mere assertion that other defendants have allegedly been dealt with more leniently.  In all the circumstances, I was not prepared to grant any adjournment of this matter.

Respondent’s submissions

12.  Mr Nicholas Wong, on behalf of the respondent, submits that the starting point adopted by the judge was neither wrong in principle nor manifestly excessive: indeed, it was completely in line with the relevant guidelines applicable to the dangerous drug “Ice”.  Furthermore, there was nothing other than the applicant’s guilty plea which would have warranted any further reduction in sentence.

Discussion

13.  The applicable guidelines in HKSAR v Tam Yi Chun (supra) suggest that a starting point of between 7 and 11 years’ imprisonment is appropriate for trafficking in between 10 and 70 grammes of “Ice” narcotic.  Here, the quantity was 20.4 grammes, which would have indicated on an arithmetical basis a starting point after trial of something just over 7½ years’ imprisonment.

14.  The notional sentence after trial adopted by the judge was 7½ years’ imprisonment.  Such a starting point was unassailable and cannot give rise to any reasonably arguable ground of appeal against sentence.  The fact that another defendant in different circumstances and on different facts may have received a lesser sentence in respect of a similar quantity of “Ice” is no reason to reduce the applicant’s sentence, if the sentence passed on the applicant is otherwise in accordance with guidelines issued by the Court of Appeal.  The Court has made this clear time and again in several cases.

15.  The judge then accorded the applicant a full one-third discount for her plea.  No complaint can be made about such discount.  Furthermore, the applicant’s extenuating family circumstances can provide no reason to grant the applicant any further reduction; particularly with an offence as serious as drug trafficking.  Clearly, the applicant knew of her mother’s predicament before she committed this offence.

Conclusion

16.  The application is refused.  The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of her application for leave.