HKSAR v. YIP PUI KEI

CACC 250/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 250 OF 2014

(ON APPEAL FROM HCCC NO. 342 OF 2013)

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JUDGMENT

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Introduction

1.  On 28 May 2014, the applicant, aged 22 and of clear record, pleaded guilty before Toh J to a count of trafficking in a dangerous drug involving 12.17 grams of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 16 July 2014, she was sentenced to 3 years and 10 months’ imprisonment.  The applicant now seeks leave to appeal against her sentence.

Ground of appeal

2.  In her Notice of application for leave to appeal (Form XI), the applicant stated that the sentence imposed on her was too lengthy.

The facts

3.  The applicant pleaded guilty on the basis of a Summary of Facts dated 15 May 2014, which she admitted.  In gist, it was admitted that the applicant was intercepted by police officers on the street in Kowloon City at about 8:28 pm on 16 May 2013.  Upon a search of one of the two paper bags she was carrying, a packet of suspected dangerous drug was found, subsequently certified to contain 12.17 grams of Ice.  Under caution at scene, the applicant told the police officer that she had bought the packet for $3,000 and intended to sell it to her friend for $4,000 in order to earn $1,000.

4.  In a subsequent cautioned interview, the applicant admitted the drug seized from her was Ice.  Her boyfriend had given her $3,000, after which she bumped into a friend called “Ah Pau” who told her he needed some Ice.  Therefore, she bought a packet of Ice from someone called “Tong Chai”, intending to sell it to her friend for $4,000, thus earning for herself a profit of $1,000 which would enable her to buy more clothes.  At the time of the arrest, she was delivering the packet of Ice to “Ah Pau”.

5.  The street value of the dangerous drug seized was $9,200.

Reasons for sentence

6.  The judge considered the sentencing guidelines set out in Attorney-General v Ching Kwok‑hung [1991] 2 HKLR 125.  Having considered all the circumstances of the case, particularly the amount of Ice involved, namely 12.17 grammes, the judge adopted a starting point of 7 years’ imprisonment.  She gave a one‑third discount for the applicant’s guilty plea.  The judge then recognised the applicant’s useful assistance to the authorities, which resulted in an overall reduction from the starting point for sentence of about 45%.  The final sentence imposed on the applicant was 3 years and 10 months’ imprisonment.

Applicant’s submissions

7.  The applicant had originally applied for an adjournment of today’s hearing so that her family members might try to obtain a private lawyer.  Upon further investigation, it appears that she did at one time have a private lawyer but he/she had been dismissed because of a difference of opinion.  I was concerned that the facts of this case are more than 2 years old and the applicant had pleaded guilty more than a year ago.  I am told by both the applicant and Mr Daryanani, for the Respondent, that nothing has changed so far as the applicant’s assistance is concerned since her sentence.  In the circumstances, I refused the application for an adjournment.

8.  As to her application for leave to appeal against sentence, the applicant complained that the sentence was manifestly excessive in view of matters which had not been fully taken into account by the sentencing judge.

Respondent’s submissions

9.  Mr Daryanani submitted that the starting point adopted, and the greater than normal discount given, in this particular case are in line with current sentencing guidelines and authority.  He submits that the final sentence is neither manifestly excessive nor wrong in principle.

Consideration

10.  I agree with the respondent’s submissions.  The applicant has already received a substantial discount from an appropriate starting point for the quantity of dangerous drugs concerned.  I cannot at this stage see any further room for manoeuvre by the appellate court.

Conclusion

11.  The application for leave to appeal against sentence is refused.  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 the loss of any time spent in custody pending her appeal, if the Court came to the conclusion that there was no justification for the renewal of that application.