HKSAR v. Tam Ling Yuen

CACC 159/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 159 OF 2015

(ON APPEAL FROM HCCC 548 OF 2013)

------------------------

------------------------

------------------------

JUDGMENT

------------------------

Introduction

1.On 6 May 2015 the applicant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars of the count alleged that on 13 July 2013, outside Nos 2-8 Dundas Street, Yau Ma Tei, the applicant trafficked in three different types of dangerous drugs, namely, 18.75 grammes of a crystalline solid containing 18.49 grammes of methamphetamine hydrochloride (“ICE”), 12.78 grammes of a solid containing 11.87 grammes of cocaine and 5.28 grammes of a powder containing 3.23 grammes of ketamine. On the same day she was sentenced by Deputy High Court Judge Wilson Chan to 4 years and 10 months’ imprisonment.  She now applies for leave to appeal her sentence.

The background to the offence

2.The facts of the offence are quite straightforward. The applicant was travelling in a taxi when it was stopped at a roadblock outside 2-8 Dundas Street, Yau Ma Tei.  The applicant was requested to produce her identity card by a police officer at the roadblock and when she twice ignored his request she was asked to alight from the taxi in order to be searched.  Upon searching the applicant’s handbag police found in it the drugs the subject of the charge.

3.Under caution the applicant maintained that the cocaine and the ICE for her own consumption.  The estimated total street value of the drugs was $25,000. 

The mitigation

4.An important part of the mitigation was that the applicant had been a drug addict since she was a secondary one student in 2005.  It was said by her counsel that she had purchased the drugs for herself and her friends to share.  However she was not able to precisely assess the amount of the drugs that were for her own consumption.  Her counsel asserted that the majority of the drugs were for the purpose of sharing with friends.  As the prosecution did not dispute that some of the drugs were for the applicant’s own consumption no Newton hearing was held.  The applicant’s legal representative relied upon the decision of the Court of Appeal in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 for the proposition that a sentencing discount in the range of 10% to 25% should be given by a court when it is satisfied that part of the drugs were for a defendant’s own consumption.

The Reasons for Sentence

5.The judge indicated in his Reasons for Sentence that as there were three different drugs involved in the charge he would employ the combined approach to sentencing.  After taking into account the fact that the applicant was trafficking in different drugs and that this was an aggravating feature, he adopted a starting point of 7 years and 9 months for the whole quantity of drugs. 

6.He then turned to the submission by the applicant’s counsel that the applicant was entitled to a discount for the fact that part of the drugs were for her own consumption.  He gave a discount of 6 months from the starting point to allow for this fact that and this resulted in a sentence of 7 years and 3 months’ imprisonment.  This sentence he further discounted by one third to allow for the applicant’s guilty plea.  By this route he arrived at a final sentence of 4 years and 10 months’ imprisonment.

The grounds of appeal

7.The applicant was not represented and has not filed any grounds of appeal.  She simply said in her Form XI that she applied for leave to appeal her sentence and seeks legal aid for so doing. 

Discussion

8.There is only one issue that it is of concern to me in respect of this application and that is the question of whether the applicant has received an appropriate discount for the fact that part of the drugs were for her own consumption.  In giving the applicant a discount of 6 months from a starting point of 93 months the judge has given less than a 10% discount. Arguably the judge should have given her a discount of at least 9 months and had he done so the applicant would have received a sentence of only 4 years and 8 months.

Conclusion

9.In order to allow the question whether the judge has denied the applicant the correct discount in accordance with the decision of the Court of Appeal in the Chow Chun Sang case, I grant her leave to appeal.

Written submission by Ms Audrey Parwani Ag.SPP, of the Department of Justice, for the respondent

The applicant in person