HKSAR v. LAW HOI KA, CONNE

CACC 57/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2014

(ON APPEAL FROM HCCC 328 OF 2013)

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J U D G M E N T

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1. The applicant, who appears in person having been refused the grant of legal aid on 15 April 2014 and the assistance of the Hong Kong Bar Association’s Free Legal Service Scheme on 12 June 2014, seeks leave to appeal out of time against the sentences imposed on her on 14 November 2013 by Toh J, following her conviction on 14 November 2013 on her pleas of guilty to two counts of unlawfully trafficking in dangerous drugs on 5 February 2013, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Both counts concerned unlawful trafficking in dangerous drugs at premises at Room 211, 2/F, Ching Chiu House, Ching Ho Estate, Sheung Shui. Count 1 concerned 1.81 grammes of heroin hydrochloride and 20 tablets containing 0.27 gramme of midazolam. 　Count 2 concerned 10.41 grammes of methamphetamine hydrochloride, 3 grammes of heroin hydrochloride and 110 tablets containing 1.62 grammes of midazolam. The applicant was sentenced to 16 months’ imprisonment on Count 1 and 4 years and 8 months’ imprisonment on Count 2, which sentences were ordered to run concurrently.

The Facts

2. Police officers observed a man approaching the door of Room 211, where he conducted a transaction with somebody inside the room.  After the man walked away he was intercepted by the police and found to have a plastic bag containing the dangerous drugs the subject of Count 1.  Having executed a search warrant on Room 211, a search revealed the dangerous drugs the subject of Count 2 in plastic bags on a table beside a bed, together with a burnt tinfoil containing traces of heroin, an inhaling device consisting of a plastic bottle containing 0.13 litres of a liquid containing traces of ice, a pair of scissors, two plastic cigarette lighters and 30 transparent plastic bags.  An electronic scale containing traces of heroin was recovered in an open space outside Room 211.

3. Under caution, the applicant admitted that she sold the heroin and midazolam to the man for HK$4,000 (Count 1), having bought the ice and heroin on different occasions.  The midazolam tablets which she sold the man had been she obtained from a doctor.  She claimed that she used the inhaling device for her own consumption of ice.  She admitted that she used the electronic balance, which she threw out before the police gained entry to Room 211, to check the weight of the dangerous drugs.

4. The retail value of the dangerous drugs seized was HK$24,882.

Reasons for Sentence

5. In sentencing the applicant, the judge noted she was 34 years of age and had been convicted of dangerous drug related offences on five occasions, one of which was for unlawful trafficking in a dangerous drug for which she was sentenced to 16 months’ imprisonment in 2009.

6. Having referred to the judgments of this court in HKSAR v Wong Suet Hau[1] and HKSAR v Chan Sau Pang, the judge said that whilst she accepted that the applicant might have possessed some of the drugs for her own consumption, she did not accept that the applicant possessed a large part of the drugs for her own consumption.  The judge noted that the applicant was unemployed, but asserted that she received money from her boyfriend and her mother.  Having indicated to counsel that she was not prepared to accept that part of the mitigation, she said that if counsel persisted with the mitigation she would conduct a Newton Hearing to determine the issue.  However, counsel declined that invitation.

7. The judge stated that she would impose sentence on the basis that most of the drugs were for unlawful trafficking and only a “very small amount was for her own consumption”.  Having adverted to the approach to sentencing in such circumstances described in the judgment of this court in HKSAR v Wong Suet Hau, she said that she had regard to the fact that possession of dangerous drug itself “carried a term of imprisonment” and secondly, of “the requirement to enhance a sentence for simple possession of drugs to reflect where appropriate the latent risk factor”.  Having observed that the applicant was selling the dangerous drugs from her home, in which all the dangerous drugs were found or had come, she determined there was a significant latent risk.

8. Then, the judge noted that this court had said that, when imposing sentence in respect of a ‘cocktail of drugs’, the judge should have regard to the nature and quantity of the most serious type of drug and to the overall amount quantity of drugs.  That, she said was a total amount of all the dangerous drugs of 17 grammes, of which 10.41 grammes was ice.  Having regard to the guidelines for sentencing for unlawfully trafficking in ice set out in the judgment of this Court in the AG v Ching Kwok Hung[2] [1991] HKLR 125, the judge stated that a starting point for sentence for unlawfully trafficking in 10 to 70 grammes of ice fell in the range of 7 to 10 years’ imprisonment. She stipulated a starting point for sentence for all the dangerous drugs of 7½ years’ imprisonment.  Having regard to the element of self-consumption of those dangerous drugs, the judge took a starting point of 7 years’ imprisonment.

Starting point

9. The judge stipulated a starting point for sentence of 2 years’ imprisonment for Count 1 and 7 years’ imprisonment for Count 2.

Discount

10. The judge said that in imposing sentence for the individual counts, she afforded the applicant a discount of one-third.

Sentence

11. Accordingly, the judge sentenced the applicant to 16 months’ imprisonment on Count 1 and 4 years and 8 months’ imprisonment on Count 2, which sentences she ordered to be served concurrently.

Grounds of appeal against sentence

12. The applicant filed with the court on 18 February 2014 a Form XI notice of application for leave to appeal against sentence out of time.

13. By an affirmation filed together with the Form XI the applicant asserted :

“ The judge knew that I had previous convictions and was a long-term drug addict. How come she did not believe that I was technically trafficking in dangerous drugs? Relying on this argument, I hope my application will be granted.”

14. In her oral submissions the applicant explained that the delay in filing her notice for application for leave to appeal against sentence was caused by the necessity to have the appeal bundle documents, which were in English only, translated so that she could understand the basis on which the judge had determined sentence.  In order to do that she sought help from friends outside prison.

A consideration of the submissions

15. Given that the applicant was unemployed and that the retail value of the dangerous drugs was over $24,000, together with the fact that the assertion in mitigation that monies were provided to her by her mother and boyfriend were unsubstantiated, the judge was entitled to determine that a large part of dangerous drugs was not for self-consumption but was for unlawful trafficking.

16. As Ms Fung pointed out in the respondent written submissions, the applicant benefited from the fact that although the judge adverted to her criminal record, noting that she had a previous conviction for unlawfully trafficking in dangerous drugs in 2009 for which she had been sentenced to 16 months’ imprisonment, she did not determine that to be an aggravating factor, in consequence of which the starting point for sentence was to be increased.

17. The overall sentence that the judge stipulated of 7 years’ imprisonment and the individual starting points taken for sentence for each count were entirely appropriate.

Conclusion

18. I accept the applicant’s understandable explanation for the delay in filing the notice for leave to appeal against sentence.  It is regrettable that in circumstances where the determination of the court, in this case reasons for sentence, are delivered in a language other than that of the applicant no permanent record of a translation of that determination is made available to the applicant so that such an applicant is better informed as to the course to take.  However, given that there is no merit in the grounds advanced by the applicant, the application for an extension of time to seek leave to appeal against sentence is dismissed.

[1]  HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

[2]  AG v Ching Kwok Hung [1991] 2 HKLR 125.