HKSAR v. LAM LAI FUN KENT

CACC 315/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2003

(ON APPEAL FROM DCCC 309 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. On 10 July 2003, the applicant was sentenced by Deputy Judge Candy in the District Court to four years' imprisonment for trafficking in a mixture containing 34.56 grammes of heroin hydrochloride. A concurrent sentence of six months' imprisonment was imposed for the possession of a mixture containing 0.91 of a gramme of heroin hydrochloride.

2. The applicant now seeks leave to appeal against her sentence on a single ground which emerged for the first time at a hearing on 17 March 2004 when this case was listed before me for leave to appeal. On that occasion, I was told by the applicant that counsel had failed, in mitigation, to refer to the fact that previously she had been remanded for six months and twenty days for a case in which she was ultimately acquitted. Her complaint was that because of this omission, no allowance for this loss of liberty had been made in the sentence she is now serving. Up until then, her written ground of appeal, which was dated 24 July 2003, merely stated that "the lawyer at that time did not say anything in mitigation on (her) behalf, causing the judge to pass an excessive sentence".

3. Having regard to what the applicant had had to say, the matter was adjourned for hearing before the Court of Appeal to allow time for the prosecution to make enquiries into the applicant's complaint. In addition, the case was referred to the Legal Aid Department for consideration to be given to the applicant being granted legal aid.

4. The facts of the present case are not material to this application. It suffices to say that the applicant was seen acting suspiciously in the street in the early hours of 9 August 2002. Police found in the applicant's possession the smaller quantity of heroin and, later, they found at her home the larger quantity. She later admitted the offences in her interviews with police.

5. The applicant was later granted police bail pending the examination of the drugs by a government chemist.

6. The applicant has a bad criminal record. She has six previous convictions and has previously served a nine-month sentence for trafficking in dangerous drugs.

7. It is not entirely surprising, therefore, that on 17 September 2002 the applicant was discovered at the Lo Wu border crossing on the point of departure from Hong Kong. She was found to be in possession of a small quantity of heroin. As to this, she was duly charged with simple possession.

8. Also arising from this arrest, the applicant was charged with trafficking in heroin resulting from an entirely separate police investigation (HCCC 399/2002). This involved one Yip Chiang-yuen who had been stopped at the Lo Wu border crossing on 16 July 2002 carrying a mixture containing 112.25 grammes of heroin hydrochloride under his clothing. By 23 August 2002, the police had established that the applicant's fingerprints were on the packaging for those drugs.

9. The facts, arising from the applicant's arrest on 17 September 2002, were brought to the attention of the magistrate at Fanling on 18 September 2002, whereupon she was remanded in custody.

10. On 27 March 2003, the applicant pleaded guilty in the Court of First Instance to the possession charge in HCCC 399/2002 but she was acquitted on the far more serious trafficking count when the prosecution offered no evidence against her. In the result, for the possession charge, the applicant was fined $500.

11. We have now, as a result of the diligence of Mr Saw, SC, and Mr Derek Lai, on the respondent's behalf, been provided with the transcript of those proceedings. It seems plain that Deputy Judge D Pang, who sentenced the applicant, very properly had in mind that the applicant had been detained in custody pending her trial and had taken this into account when deciding to impose a financial penalty (albeit a prison sentence designed to achieve the applicant's immediate release would, we consider, have been more appropriate). The mitigation he had heard, which was advanced by counsel then appearing on the applicant's behalf, Miss SY Cheng, was not only highly articulate but also to be commended for focusing on the sole point of merit which was likely to be of benefit to the applicant.

12. The transcripts reads:

"Miss Cheng:	.... under section 54A of the Dangerous Drugs Ordinance, if Your Lordship is minded to impose on (the Defendant) a custodial sentence, a DATC report should be called for. However, I have got instruction in this respect. (My client) hopes that the Court would consider a non-custodial sentence for the reason that the dangerous drugs involved in this case amounted to 0.24 gram (only). Even if the Court adopted a starting point of 12 months' imprisonment, taking into account her guilty plea, 1/3 discount would be given (to reduce the sentence) to 8 months. Coupled with the fact that she was of good behaviour, she would have served the term of imprisonment since in fact, she has already been in custody for 6 months and 10 days since she was first remanded. If Your Lordship calls for the DATC report mainly because of the legislative spirit and your wish to consider her drug addiction problem, I have got instruction regarding this, and that is as she had been remanded for such a long time, she already got completely free from the addiction to date. Besides, as Your Lordship see from the criminal record, for the first three convictions the Defendant had been sent to the drug addiction treatment centre and also for the third and fifth convictions, DATC reports had been called for before sentence, already....
Court:	What sentence do you suggest?
Miss Cheng:	I would urge Your Lordship to impose a fine on (her) because in this case, coupled with the period she has in effect been remanded in custody it should already be sufficient punishment for her.
Court:	Since when has she been remanded in custody?
Miss Cheng:	She has been remanded in custody since 17 September last year. As at today, I reckon (she has been remanded) for 6 months and 10 days already.... As I said, the criminal record shows that not only had the Defendant been sent to the drug addiction treatment centre three times before but DATC reports had also been called for before sentencing by the Court for some other subsequent convictions. At that time it was already decided that she was no longer suitable for being sent to the drug addiction treatment centre. Thus, on this occasion, even if Your Lordship follows the legal spirit and (calls for a DATC report) to see whether she is still addicted to drugs, I believe that in any event the officer preparing the report will not recommend her for DATC. Under such circumstances, if we anticipate that (the Defendant) will not be found suitable for DATC even though we have her remanded for another three weeks for the report, I would think that it is a waste of public fund to have officers concerned prepared the report. Therefore, I would ask the Court to take a more practical view of this case where (the Defendant) has actually been remanded in custody for 6 months and 10 days. That, coupled with a fine, in my view, taking into account the quantity of dangerous drugs involved, should be enough (punishment). In fact, had it not been for the 1st charge, if this case had been separated from the other to be dealt with in the magistracy, as far as the punishment for this case is concerned, she should have completely served the sentence already. This is what I would urge Your Lordship to consider ..."

13. The judge then considered with counsel the applicant's ability to pay a fine. He also confirmed with prosecuting counsel that the applicant's dates in custody had been accurately summarised which, needless to say, they had been.

14. In passing sentence in HCCC 399/2002, Deputy Judge D Pang (in what appear to have been unscripted sentencing remarks) said:

".... the general legal principle is that a DATC report should be called for first. However, as your counsel pointed out, you had been sent to the drug addiction treatment centre on several occasions for various offences before and so, probably it would no longer be effective for you to be sent there again. In any event, there might not be such recommendation either.

In that case, if a custodial sentence is imposed on you, as I expect, the starting point of imprisonment will not exceed (12) months. Besides, the risk of trafficking did not exist and so no additional sentence will be imposed on you. On the contrary, as you have pleaded guilty, a discount of 1/3 will be given thereby reducing the sentence to 8 months.

In addition, had you not been (charged) with the other trafficking offence for which the prosecution has now decided not to offer any evidence against you, normally after normal remission by the prison authorities, you might have been released by now for having been remanded for 6 months and 10 days. Thus, custodial sentence is not a fair punishment either.

Therefore, I accept the argument of the defence Counsel and fine you $500 only."

Although these remarks were not as clear as they might have been, it is apparent to us, as it would have been to the applicant, that the mitigation had, for the reason advanced by counsel, succeeded in persuading the judge not to send the applicant to prison on this occasion as she had effectively already served her sentence.

15. Returning to the matter presently before us, the applicant's complaint that she had lost the benefit of a reduction in her present sentence because she had been needlessly remanded in custody for over six months for another offence which had resulted in her acquittal was, of course, only partly true as this was not the full picture. For the possession of heroin in HCCC 399/2002, the applicant, with her record, was aware that she was quite likely to have received a prison sentence. Indeed, that is exactly what the judge had indicated to her he would have imposed but for the mitigation. It is apparent, as we have said, that the applicant was well aware that her time in custody pending the High Court proceedings had been utilised in full.

16. Today in court, the applicant has informed us that she had no idea that the judge in HCCC 399/2002 had been told anything of the kind set out in the transcript of mitigation. Apparently, it came to her as a complete surprise, when she read the transcript, to find out that her counsel had mitigated along the lines that the time she had served in custody for a charge on which the prosecution eventually did not proceed should enable her to be fined a nominal sum. We can say now that we do not believe that the applicant was unaware of the position until she saw the transcript.

17. In the present matter, Deputy Judge Candy took a starting point of six years' imprisonment for the charge of trafficking before reducing this to four years to take into account the guilty plea. In fact, more appropriately, a starting point of seven years could have been taken for this quantity of heroin and, in the light of her previous conviction for trafficking, this was the minimum which probably should have been taken.

18. Putting together the fact that the applicant had escaped a custodial sentence in HCCC 399/2002 because of the time she had already spent in custody pending her trial, and the fact that the judge's starting point in the District Court case extended a measure of leniency to which she was hardly entitled, we can see no grounds whatever for making further allowance at this stage for the time spent in custody pending the High Court proceedings.

19. It follows that, in our judgement, there was no fault on the part of counsel in the District Court in failing to make reference to the time in custody when this mitigation had, to the applicant's knowledge, already been instrumental in keeping her out of prison in the High Court proceedings.

20. The application is devoid of all merit and it is dismissed.

21. We consider that what has occurred in these proceedings amounts to a clear attempt by the applicant to mislead the court into thinking that she had a valid ground of appeal when she knew all along that she had none. She has, since the previous hearing, had the opportunity of being advised by the Legal Aid Department and by counsel, Mr Richard Wong, to whom we are grateful for his attendance for the purposes of assisting the court (although, perfectly properly, he felt unable to advance any grounds of appeal).

22. The applicant is well aware of the court's powers under section 83W of the Criminal Procedure Ordinance, Cap. 221. On the basis that this application was more than usually devoid of merit, we propose, having given the applicant the opportunity to address us on this issue, to order loss of time of four months which is to say that that period of time will not be reckoned as part of the term of the sentence which the applicant is now serving.