HKSAR v. CHAN SIK LING

CACC 142/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 142 OF 2015

(ON APPEAL FROM HCCC NO. 496 OF 2013)

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JUDGMENT
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1.  On 15 November 2013, the applicant pleaded guilty at the Eastern Magistrate’s Court to one charge of trafficking in a dangerous drug, namely 27.58 grammes of a crystalline solid containing 26.98 grammes of methamphetamine hydrochloride, commonly known as “Ice”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; as a result of which she was committed to the High Court for sentence. On 27 January 2014, she duly appeared before E Toh J, who sentenced her to 5 years’ imprisonment.

2.  The applicant now seeks leave to appeal against her sentence out of time by way of a Notice of application for leave to appeal (Form XI) filed on 4 May 2015, by which time her application for leave had been out of time by some 14 months.

The prosecution case

3.  At about 3 am on 24 July 2013, the police intercepted the applicant in Un Chau Street, Shamshuipo, Kowloon and conducted a search opon her.  In her jacket was found a Marlboro’ cigarette packet, which contained a transparent plastic bag containing what was subsequently found to be 27.58 grammes of a crystalline solid containing 26.98 grammes of “Ice”, with an estimated retail value of HK$18,313.  Having been arrested and cautioned, the applicant admitted that she had bought the “Ice” for HK$3,000 and was planning to sell it to others for HK$4,000 so as to make a profit of HK$1,000.

Mitigation

4.  At the time of her sentence, the applicant was 20 years of age and had a clear record.  It was submitted to the judge on her behalf that at the beginning of 2013, the applicant had fallen in love with her boyfriend, which resulted in her moving out from her home to live with him.  Her boyfriend encouraged her to consume “Ice”, but as soon as he discovered that she had become pregnant by him, he left her.  Without the boyfriend’s support, she underwent an abortion.  She was unable to mend the strained relationship with her family and had no place to live.  Without any gainful employment, she became a drug courier in order to make money.

Reasons for Sentence

5.  In sentencing the applicant, the judge made reference to the guidelines laid down in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, where the Court prescribed a sentencing range after trial of 7 to 10 years’ imprisonment for trafficking in 10 to 70 grammes of “Ice”.  Having considered the circumstances of the case and the quantity involved, the judge adopted a starting point of 7½ years’ imprisonment.  Giving the applicant a full one-third discount for her guilty plea, the judge sentenced her to 5 years’ imprisonment.

The late application for leave

6.  The applicant has sought to explain in a statement attached to her Notice of application for leave to appeal against sentence out of time that her family members had found new grounds of appeal to show that the sentence she received was too long for the amount of narcotic concerned in the charge.

7.  In my view, no good reason has been given for such a substantial delay in filing her Notice of application for leave to appeal. Nevertheless, I shall still examine the merits of her appeal against sentence to see if there are any reasonably arguable grounds of appeal.

8.  I should say here that the applicant began the proceedings this morning by applying for an adjournment of this hearing on the basis that her family members were raising funds to find a private lawyer to argue the appeal.  I refused her application for an adjournment because the offence was committed more than two years ago and she was already 14 months out of time in filing notice of her intention to appeal.  She is not, of course, prevented from retaining a private lawyer should she decide to renew her application before the Court of Appeal.

Grounds of appeal against sentence

9.  The applicant has put forward only one general ground of appeal in her application for leave, namely that her sentence was too long, in view of the quantity of “Ice” involved.

Consideration of the appeal against sentence

10.  As Ms Khubchandani for the respondent points out, if one were to be strictly mathematical about the sentence appropriate under the guidelines in respect of 26.98 grammes of “Ice” narcotic, the starting point would be about 7 years and 10 months’ imprisonment.  The judge’s adoption of a slightly lower starting point of 7½ years’ imprisonment would, therefore, appear to be unassailable.

11.  As for the discount of one-third, that was entirely appropriate for the mitigation advanced, where the only real mitigation was the applicant’s early plea.

12.  The judge did recognise the “sad” personal circumstances of the applicant but considered that they could not outweigh the harm that such dangerous drugs would do to society when disseminated through nightclubs and discotheques.  In so saying, the judge was honouring a long held and firmly entrenched principle of sentencing that family and domestic circumstances should normally be disregarded where sentences for serious offences are concerned: see, by way of example, HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, at 87E-G.

Conclusion

13.  In all the circumstances, I cannot see that there are any reasonably arguable grounds to appeal the sentence of 5 years’ imprisonment after plea.  There being no good reason why such an application for leave is now being made so far out of time, leave to appeal against sentence out of time must be refused.

14.  The applicant is duly advised of her right to renew her application to the Court of Appeal and the consequences of so doing, which may include a direction for loss of time spent in custody pending her appeal, if the Court of Appeal comes to the conclusion that was no justification for the renewal of the application.