HKSAR v. CHENG SAU PING

CACC 155/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 155 OF 2005

(ON APPEAL FROM DCCC NOS. 1386/2004 & 139/2005)

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J U D G M E N T

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Hon Woo V-P (giving the judgment of the Court):

1. On 24 March this year, the applicant Cheng Sau-ping was convicted on her own plea before Judge Thomas in the District Court on a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Ordinance, Cap 134 and a charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the same Ordinance.  The judge sentenced her to imprisonment for three years four months for the first charge and six months for the second charge.  He ordered two months of the second sentence to run consecutively to the first sentence.  The total sentence came to three years and six months.

2. The applicant now seeks leave to appeal against sentence.

3. As shown in the Summary of Facts admitted by the applicant, the first charge related to her admitted trafficking in dangerous drugs for others on 17 September 2004, involving 11.75 grammes of a mixture containing 9.78 grammes of heroin hydrochloride, 2.88 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 0.08 gramme of a powder containing traces of heroin and triazolam.  The second charge related to 19 December 2004, when she was found to have in her possession a plastic bottle containing 145 millilitres of a liquid containing traces of Ice, one paper packet containing 0.14 gramme of a mixture containing 0.10 gramme of heroin hydrochloride and traces of Ice, one piece of metal foil containing 0.01 gramme of a power containing Ice and another piece of metal foil containing traces of Ice.

4. The judge adopted a starting point of 5 years’ imprisonment for the first charge and 9 months for the second charge.  He reduced each by one-third for the applicant’s ready guilty plea to respectively 3 years 4 months and 6 months.  He ordered 2 months of the second sentence to run consecutively to the first sentence.

5. The applicant has raised three grounds of appeal in her notice of application dated 12 April 2005.  First, she was 7-month pregnant.  Second, She has a two-year old son at home and she wants to look after him.  Third, the sentence is too long.  She is very remorseful, and if her appeal is allowed she will turn a new leaf, look after her children well as a good mother and conduct herself to abide by the law.

6. Trafficking in dangerous drugs is a very serious offence.  Sentencing guidelines have been laid down in R v Lau Tak-ming & Ors [1990] 2 HKLR 370 regarding heroin and AG v Ching Kwok-hung [1991] 2 HKLR 125 regarding Ice.  For an accused convicted of trafficking after trial, involving heroin up to 10 grammes, the tariff is 2 to 5 years’ imprisonment, and between 10 and 50 grammes 5 to 8 years’ imprisonment.  In respect of trafficking in Ice, the tariff is 3 to 7 years’ imprisonment where the offence involves up to 12 grammes, and where the quantity involved is between 12 and 17 grammes, a period of 7 to 10 years’ imprisonment.

7. The judge took into account the overall quantity of narcotics involved in the first charge to adopt the starting point of 5 years, which is the lowest in the bracket for a quantity of over 10 grammes of heroin mentioned in Lau Tak-ming.  The total quantity of the narcotics involved in the first charge was not less than 12 grammes.  It can therefore be appreciated that when adopting the 5 years the judge was quite lenient to the applicant.  The starting point for possession under the second charge was not at all inappropriate, especially when the judge had noted that the second offence was committed while the applicant was on police bail under the first offence. 

8. The difficulty that the applicant is facing, including her pregnancy (she has since given birth to a baby boy whose care she has given to the Social Welfare Department) and her wish to look after her children, has little effect to mitigate sentence, in view of the serious nature of the first charge: see HKSAR v Esmeralda, CACC 11/2004, para 7 and generally Cross & Cheung on Sentencing in Hong Kong, 4^th Ed, pp 332-334.  Her remorse has already been taken into account when the judge gave her full credit for her guilty plea.

9. In my judgment, the grounds of appeal against sentence are not reasonably arguable.  Despite the sympathy that one feels for the children, there is nothing in this case that indicates that the sentence is against principle or manifestly excessive.  The application is therefore dismissed.

10. I advise the applicant that she may make a fresh application within 14 days to this Court.  However, I warn her that if the Court that deals with the fresh application comes to the view that the fresh application has no merit, it may order a loss of the time she has spent in custody to be taken away from the counting of her service of the imprisonment, and that the Court can increase sentence.