HKSAR v. Wong Sze Tung

CACC 19/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2015

(ON APPEAL FROM HCCC NO. 286 OF 2014)

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JUDGMENT
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1.The applicant pleaded guilty at Eastern Magistracy to two charges of trafficking in a dangerous drug, 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 15 January 2015, she appeared before Deputy High Court Judge Tallentire, and was sentenced to a total sentence of 4 years and 3 months’ imprisonment. On 19 January 2015, the applicant filed a notice of application for leave to appeal against her sentence.

The facts of the case

2.On the evening of 13January 2014, the police intercepted the applicant outside her residential premises. Upon search, a plastic bag of dangerous drugs was found inside the applicant’s left glove. The dangerous drug was subsequently confirmed to be 2.90grammes of a crystalline solid containing 2.88grammes of methamphetamine hydrochloride (commonly known as “Ice”) [Count 1]. The applicant was arrested and cautioned, whereupon she claimed that the drugs were for her own consumption.

3.The applicant was taken to her home for a house search. A metal box containing 7plastic bags of a dangerous drug suspected to be “Ice”, 7 plastic bags of suspected herbal cannabis, a plastic straw, 105empty plastic bags, a plastic pot with pipe, a weighing scale, twolighters and a notebook recording dangerous drug transactions, were found inside a drawer in the living room.

4.The dangerous drugs found in the applicant’s premises were later confirmed by a government chemist to be 8.91grammes of a crystalline solid containing 8.87grammes of “Ice”, with a further 41.41grammes of herbal cannabis [Count 2].

5.Under caution, the applicant stated that the “Ice” and herbal cannabis were both for trafficking and for her own consumption. She used the plastic pot with a pipe, the scale and the two lighters for inhaling “Ice”. She recorded the drug transactions in her notebook.

6.In a subsequent video recorded interview, the applicant stated that:

(i) At the time of arrest, she had left her premises with the drugs inside her glove in order to find customers in amusement game centres;

(ii) The metal box together with the dangerous drugs seized at her premises was bought from an unknown male the day before her arrest. She was yet to sell this batch of dangerous drugs.

(iii) She inhaled “Ice” by using the plastic pot together with the pipe.

Mitigation

7.The applicant was 21years of age, educated to Form5 level and single. She was in good health and worked as a saleslady and hairstylist.

8.She had had what the judge later characterised as “a disrupted childhood”, having been brought up by an aunt and uncle after the divorce of her parents. She had lost contact with her father and had little contact with her mother. She resided with her aunt, who was present in court and was said to be supportive of the applicant.

9.The applicant had one previous conviction for possession of a dangerous drug in 2008. She had from time to time taken “Ice” with various degrees of dependency. She claimed that she bought the dangerous drugs for her own consumption or to share with friends. These friends would then reimburse her for the cost of the drugs.

Reasons for sentence

10.The judge indicated that he was prepared to accept that the drugs were bought either for her own consumption or to share with friends who would reimburse her. He further indicated that he would disregard the herbal cannabis in the course of considering sentence, given the presence of the far more serious drug “Ice”. In relation to Count 1, the judge took a starting point of 3years’ imprisonment and reduced it to 2years for the applicant’s guilty plea. As for Count 2, the judge took a starting point of 6years’ imprisonment and reduced it to 4years for plea.

11.Had there been no element of using the drugs for the applicant’s own consumption, the judge indicated that he would have ordered 2 years and 10 months’ imprisonment in respect of Count 2 to run consecutively to the sentence on Count 1, thus making 4 years and 10months’ imprisonment. However, in view of his acceptance of the element of the applicant’s own consumption of some of the drugs, the judge ordered 2 years and 3 months of Count 2 to run consecutively to the sentence on Count 1. Accordingly, the overall sentence was 4years and 3 months’ imprisonment.

Grounds of appeal

12.The applicant’s general ground of appeal is that the sentence was too long. Before me this morning, she has said that she has been intending to provide certain information to the authorities but has been unable to do so because she is not represented by a lawyer. Suffice it to say, no approach has so far been made, nor information furnished, to the authorities.

Consideration

13.If the amounts of “Ice” in both counts were added together and treated as a single count of trafficking for sentencing purposes, the quantity of narcotic would have amounted to 11.75 grammes of “Ice”. On a strictly arithmetical application of the guidelines in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, the starting point for such a quantity would have been just over 7 years’ imprisonment. By saying that, but for the element of simple possession, the overall sentence would have been one of 4 years and 10 months’ imprisonment after plea, the judge must have contemplated (assuming a full one-third discount) a starting point of 7 years and 3 months’ imprisonment. It may be said, therefore, that the overall starting point was slightly higher than a strictly arithmetical application of the guidelines to the quantity of dangerous drug concerned.

14.However, the judge allowed a further substantial deduction for the applicant’s claim through her counsel that some of the drugs were for her own consumption and for sharing with friends, and reduced the sentence to 4 years and 3 months’ imprisonment overall. In effect, he gave her a further 7-month deduction for this factor.

15.I am prepared to proceed on the same basis as the judge proceeded, although I note that the applicant had formally admitted in the Summary of Facts a statement “that at all material times she possessed the dangerous drugs particularised in Charges 1 and 2 for the purpose of trafficking”. I note also that, when interviewed, she had told the police, as she also confirmed in the Summary of Facts, that she had left her premises armed with the dangerous drugs in Count 1 in order “to find customers in amusement games centres”.

16.As Mr Lee for the respondent points out, “social” trafficking is still trafficking in dangerous drugs and should not lead to any significant sentencing discount. He laid particular emphasis on the comments of the Court of Appeal in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, at 85A-C:

“In our opinion, while some of the “social” or “non-commercial” trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking. The “friend” who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

17.I also do not intend to go behind the judge’s decision to ignore the applicant’s trafficking in 41.41 grammes of herbal cannabis for sentencing purposes, even though the applicant might be viewed as someone who was trafficking in two different types of dangerous drugs.

18.Accepting all of these matters in the applicant’s favour, I do not consider at this stage that she has made out any reasonable grounds for arguing that the overall sentence of 4 years and 3 months’ imprisonment was manifestly excessive and/or wrong in principle.

Conclusion

19.Leave to appeal against sentence must therefore be refused.

20.The applicant is duly advised of her right to renew her application for leave to appeal her sentence to the Court of Appeal but also of 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 of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Vincent Lee SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person