Read the full judgment text of CACC 346/2014 on BabelCite. This Court of Appeal judgment was delivered on 13 October 2015 before Macrae JA, McWalters JA.
Criminal law – drug trafficking – methamphetamine hydrochloride (Ice) – sentencing – guilty plea – discount for self-consumption of drugs – fresh evidence on appeal – section 83V Criminal Procedure Ordinance (Cap 221) – reasonable explanation for failure to adduce evidence at trial – incompetent advocacy – credibility of evidence – application of HKSAR v Wong Suet Hau – applicant convicted on her own plea of trafficking in 222.64 grammes of a crystalline solid containing 216.17 grammes of Ice, worth HK$176,998, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, after being intercepted with nine pre-packaged packets intended for delivery at HK$500 per packet – whether applicant entitled to a further discount for self-consumption – whether fresh evidence consisting of a medical report showing amphetamine use and the applicant's testimony should be received under section 83V – test for receiving fresh evidence requires credible evidence, admissibility, relevance, reasonable explanation, and ground of appeal – reasonable explanation requires a conscious decision not to adduce evidence amounting to flagrantly incompetent advocacy under R v Rodolpho de los Santos – drug trafficking claim of self-consumption scrutinised with care per HKSAR v Wong Suet Hau – whether trial counsel's advice not to advance self-consumption was incompetent – held no, advice was legally correct and practically sound – whether evidence likely to be credible – held no, drugs pre-packaged for delivery, applicant admitted cash payment per packet, did not mention self-consumption to police, and belated claim of payment in kind detracted from credibility – starting point 12 years 6 months reduced by one-third for guilty plea to 8 years 4 months – application for leave to appeal against sentence dismissed – application to adduce fresh evidence refused.
Legal issues: Whether to receive fresh evidence under s.83V Criminal Procedure Ordinance · Whether trial counsel's advice not to advance self-consumption was incompetent advocacy · Whether the self-consumption claim was credible evidence
Outcome: Application for leave to appeal against sentence dismissed; application to adduce fresh evidence refused.
Cites 2 cases