HKSAR v. TANG YUK MUI

HCMA 892/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 892 OF 2001

(ON APPEAL FROM TMCC 1387 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence.

2. The appellant originally appealed against both conviction and sentence in respect of her conviction after trial for an offence of trafficking in 0.14 gramme of heroin in respect of which she was sentenced to 22 months imprisonment.

3. Before me today she had abandoned her appeal against her conviction and this matter proceeds as an appeal against sentence only.

4. The facts of the case as found by the learned magistrate were that the appellant had sold the heroin to an under-cover police officer in a rear lane behind a restaurant in Kam Tin. The under-cover police officer's evidence which was accepted by the learned magistrate was that he had gone to the vicinity of the restaurant and had posed as a drug addict. The appellant had then approached him and asked him if he needed anything. When the officer said he wanted white powder the appellant told him to follow her to the rear lane. There she said it would cost him $200 and the officer handed her that money in recorded bank notes. The appellant then gave him a straw containing the heroin the subject of the charge.

5. Before me today, she says the sentence of 22 months imposed upon her by the learned magistrate was too severe. She gives two reasons for that assertion. Firstly she says she was a first offender so far as trafficking in dangerous drugs is concerned and that that was not properly considered by the learned magistrate.

6. It has been said by courts in Hong Kong on a number of occasions that a clear record is not a significant mitigation in respect of drug trafficking offences. But further, in this case, it is quite apparent that the appellant does not have a clear record. She has a number of convictions and indeed in 1986 was convicted of possession of dangerous drugs for the purposes of trafficking. In respect of that offence she received twelve months imprisonment.

7. The learned magistrate at the time of sentence had in fact given the appellant a one month discount on the basis that this was her first conviction for trafficking in dangerous drugs. He gave her a further one month discount because the appellant had had no other criminal conviction since 1999.

8. In my view the learned magistrate was quite generous in respect of allowing that total of two months discount to the appellant on the basis of her previous record.

9. He further took into account the second matter urged upon me by the appellant today which is the fact that she has two daughters aged presently 15 and 17. The learned magistrate was aware of that and ordered that the Social Welfare Department be notified regarding the appellant's two daughters. That apparently was done because they are presently in the St. Christopher's Girls Home.

10. Whilst every court has sympathy for mothers with children who find themselves in the position of the appellant, that circumstance does not amount to a humanitarian factor of such a degree as to warrant any reduction in sentence. The magistrate's sentence of 22 months cannot otherwise be criticized given the amount of drugs concerned and particularly also the apparent organized way in which the sale to the under-cover police officer took place. There is no merit in the appeal against the severity of sentence and it is dismissed.