HKSAR v. LEE KA WAI

CACC 344/2019

[2020] HKCA 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 344 OF 2019

(ON APPEAL FROM HCCC 242 OF 2019)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of unlawfully trafficking in a dangerous drug, namely 13.1 grammes of a crystalline solid containing 11.1 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. At her committal hearing in the Magistracy she pleaded not guilty and maintained this plea in a subsequent case management hearing at the Court of First Instance. Her trial was fixed to commence on 18 November 2019 before DHCJ Martin Hui SC (“the judge”) but on 14 November 2019 her counsel informed the court that the applicant would plead guilty to the count. She was subsequently sentenced to a total of 4 years and 10 months’ imprisonment on 25 November 2019.

2.  The applicant by her Notice of Application for Leave to Appeal (Form XI) filed on 6 December 2019 applied for leave to appeal against her sentence.  At the hearing of the application on 11 August she applied for an adjournment in order to obtain legal representation.  I granted that application and adjourned her leave application to 16 October 2020.  On that date the applicant applied for further time to obtain legal representation but I refused to further adjourn her case.  I proceeded to hear her application for leave to appeal her sentence and at the end of the hearing I refused the applicant leave to appeal and said I would hand down my reasons for so doing at a later date.  This I now do.

The Summary of Facts

3.  The Summary of Facts which was admitted by the applicant and used for the purpose of her sentencing revealed that in the evening of 13 June 2018 she was stopped and searched by police officers near Exit C inside Mong Kok East MTR Station.  The applicant was carrying a black bag and within it the police officers found a transparent bag containing the Ice particularised in the charge and it was an admitted fact that this Ice had a market value of HK$6,956.

4.  In a video record of interview, the applicant said that she bought the Ice for HK$4,500 and that she was going to resell it in the New Territories for HK$5,500. 

The mitigation

5.  The applicant was 42 years of age at the time of sentencing.  She was a drug addict who had a long history of abusing drugs. She had 18 previous criminal convictions, 10 of which were for drug possession and 2 of which were for drug trafficking.  She was last convicted of possession of a dangerous drug on 27 November 2017 and was then sentenced to 12 months’ imprisonment.  It was accepted that she committed the present offence just five months after her release from prison for this conviction.  

6.  Her counsel made a claim of self-consumption in respect of half of the Ice seized from the applicant’s black bag, claiming that at the time of her arrest the applicant was taking 1 gramme of Ice per day.  The applicant did not testify in support of her claim and in order to establish her long history of addiction she relied on the contents of a 2017 Drug Addiction Treatment Centre (DATC) Suitability Report, her criminal record and a urine test result which showed that she had tested positive for Ice 3 days after her arrest.  Her counsel also relied on the opinion of a prosecution expert, Dr Tse Man Li, that:

“…The average daily dose of ICE among established abusers is in the range of 0.1 gramme to 0.5 gramme, some 10 – 20% heavy users may use up to 1 gramme. Self-reported daily consumption more than 1 gramme is possible but rare….”[1]

7.  In respect of the discount that the applicant should receive for her guilty plea, her counsel accepted that it was a late plea as it was entered just 4 days prior to her trial.  Therefore, the applicant would only be entitled to a discount in the range of 20% to 25%.  However, he asked the judge to take into account that at the case management hearing in September 2019 the defence had agreed the vast majority of the prosecution case so that the issues in dispute were considerably narrowed.

The judge’s Reasons for Sentence

8.  After setting out the facts, personal background and mitigation of the applicant, the judge directed himself in accordance with HKSAR v Tam Yi Chun[2]and held that on a strict arithmetic calculation for 11.1 grammes of Ice, the starting point was 7 years and 1 month.

9.  For the purpose of determining the applicant’s claim of self-consumption with respect to half the amount of the Ice seized, the judge directed himself in accordance with HKSAR v Wong Suet Hau & Another[3], HKSAR v Chow Chun Sang[4], HKSAR v Tam Ling Yuen[5] and HKSAR v Choi Chun Wo[6].  He noted that the applicant’s counsel was not seeking a Newton hearing and that the applicant did not wish to testify in support of her claim.  He also took into account the prosecution expert’s view of the possible daily consumption rate of Ice by heavy users, the applicant’s urine test report and her previous DATC Suitability Report.  He accepted that a significant amount of the Ice that had been seized was for the applicant’s own consumption and said it was “appropriate to afford her a discount of 15% for that mitigating factor.”[7] 

10.  In respect of her plea of guilty, the judge directed himself in accordance with HKSAR v Ngo Van Nam[8] and, balancing all relevant matters, awarded the applicant a 20% discount for her late plea. 

11.  Discounting his initial starting point of 85 months, by 15% and then that resulting figure by 20%, the judge reached a final figure of 58 months’ imprisonment and this was the sentence he imposed.    

The applicant’s ground of appeal

12.  The applicant was unrepresented.  In her Form XI, she did not set out any specific complaint except that her sentence was manifestly excessive.

13.  At the hearing of the application she applied for a further adjournment of her case to obtain legal representation.  This was refused when it became apparent that she had been denied legal aid, for the second time, and that the private firm of solicitors whom she claimed her family had approached, said they had no knowledge of her.  When called upon to address the court on the merits of her application for leave to appeal the applicant said she had nothing to say.  

Discussion

14.  The initial starting point adopted by the judge is in line with the applicable tariff and is therefore unassailable.  However, it is worth noting that the judge did not, as he would have been justified in doing, enhance his starting point, to allow for the applicant’s appalling drug-related record and the fact that she committed the present offence shortly after her release from prison for her last drug conviction.  From what this applicant said to the officer of the Rehabilitation Unit of the Tai Lam Centre for Women who compiled her DATC Suitability Report, it is clear that she is quite happy to live with her addiction and to fund it by prostitution and drug trafficking.  This would suggest that the time may well have now come for the court to impose on her sentences containing greater deterrence in order to protect the community from her behaviour and to provide greater incentive to her to change her ways.

15.  Apart from determining the starting point for the applicant’s sentence, there were two issues the judge had to decide.  The first was whether he should accept the claim of self-consumption and if so to assess what discount was appropriate.  The second was to determine what discount he should award the applicant for her late guilty plea.

16.  I have carefully considered the transcript of the mitigation and the materials on which the applicant relied and the judge’s Reasons for Sentence.  I can find nothing in any of these materials which could form the basis of a reasonably arguable ground of appeal.  Indeed it is quite apparent that the judge took great care when dealing with all the matters advanced before him.  He correctly directed himself on the law and exercised his sentencing discretion with as much leniency as the applicant’s circumstances would allow.  The applicant has been generously treated by the judge and she should consider herself fortunate that she did not receive an enhanced starting point and a lesser discount for self-consumption.  

17.  This application is, therefore, wholly devoid of merit.

Disposition

18.  For these reasons I refused the applicant leave to appeal her sentence.  I reminded her of her right to renew her application before the Court of Appeal and also reminded her that should she do so, and should the Court of Appeal find no merit in her renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.