HKSAR v. Lau Yeuk Wa

CACC 416/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 416 OF 2015

(ON APPEAL FROM HCCC NO. 49 OF 2015)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

1.The applicant faced one count of unlawfully trafficking in a dangerous drug, namely 27.3 grammes of a crystalline solid containing 26.0 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded guilty before Deputy Judge D’Almada Remedios[1] in the High Court and, on 7 December 2015, was sentenced to a total term of 4 years and 4 months’ imprisonment.

2.On 14 December 2015, the applicant filed a Notice of application for leave to appeal against her sentence.

The facts

3.On 31 July 2014, police conducted an anti-dangerous drugs operation in Sheung Shui, during which the applicant was seen acting furtively and was accordingly intercepted.  Upon a search of her handbag, a coin purse was found to contain a re-sealable plastic bag wrapped in tissue paper, which contained 27.3 grammes of a crystalline solid, later found to contain 26 grammes of “Ice”.  Under caution, the applicant admitted that the substance was “Ice”, a dangerous drug, which she had bought for her own consumption.  When asked why she was carrying such a large quantity of the drug, she repeated that it was for her own consumption but that if there was a surplus, she would treat her friends to it.  She was arrested for trafficking in a dangerous drug, whereupon she repeated that she had bought the “Ice” to consume herself and with her friends for fun.  A later search of her residence revealed nothing of interest.

4.In a subsequent video-recorded interview, the applicant stated that she had bought the drug in question from an acquaintance in Yau Ma Tei for HK$2,500.  She was unemployed and said she was in Sheung Shui to look for a friend to borrow some money.  The applicant again said she was a regular user of “Ice” and would also treat her friends to it.

5.The estimated value of the “Ice” was HK$12,200.

6.Upon her plea of guilty, the applicant admitted a paragraph in the Summary of Facts to the effect “that the “Ice” found was for the purpose of trafficking”.[2]

Mitigation

7.In mitigation, counsel for the defence submitted that “some” of the drugs found were for the applicant’s own consumption.[3] This was supported by a urine test result conducted shortly after her arrest in which she had tested positive for amphetamines.  Counsel on her behalf sought a discount “close to the 25% for the personal use”, whilst accepting that the applicant may have sold some of the drugs to further her own addiction.  It was also submitted that the sentence should be made partially concurrent with a wholly unrelated sentence of 8 months for assault occasioning actual bodily harm which had been passed on 30 July 2015.  It was also submitted that the applicant had a 4 year-old son who was currently being looked after by family members.

Reasons for Sentence

8.In sentencing, the judge considered the authorities of HKSAR v Tsang Chung Keung[4]and HKSAR v Chow Chun Sang[5] as to the discount to be accorded where part or, indeed, all of the drugs were for the defendant’s own use.  She accepted that “most of the drugs were for (the applicant’s) own consumption”.[6]  Taking into account the quantity of drugs involved, the proportion intended for the applicant’s own consumption, the nature of the drugs and the applicant’s criminal record, the judge considered a discount of approximately 20% from the starting point to be appropriate.  Adopting 8 years’ imprisonment as an appropriate sentence after trial in accordance with the guidelines set out in HKSAR v Tam Yi Chun[7], the judge thus reduced the starting point by 20%, and by a further one third for her plea of guilty.  Accordingly, the applicant was sentenced to an overall term of 4 years and 4 months’ imprisonment.  The sentence was ordered to run wholly consecutively to what the judge was led by counsel to believe was an existing sentence of 8 months’ imprisonment for assault occasioning actual bodily harm.  I shall deal with the question of whether the sentence of 8 months’ imprisonment was in fact still subsisting at the time the judge came to sentence for the present offence shortly (see para’s 14-15 infra).

Grounds of Appeal

9.In her Form XI, the applicant did not provide any specific grounds for her appeal against sentence, but asked for legal aid to be granted, which application has subsequently been refused.[8]  She has before me today merely explained that her family members had encouraged her to see whether she could get leave to appeal against her sentence.

The respondent’s submissions

10.Mr Daryanani, SPP, on behalf of the respondent, has submitted that the judge was correct to accept a plea of guilty to trafficking, despite accepting that most of the dangerous drugs were for the applicant’s own consumption[9]; furthermore, social trafficking, as the applicant had described, was still trafficking: see HKSAR v Wong Suet Hau.[10]  He contended that the starting point of 8 years’ imprisonment was correct in all the circumstances.

11.As for the discount for self-consumption, it was submitted that in the normal course, where all or part of the drugs were intended for the trafficker’s own consumption, the ensuing discount should, depending on the circumstances, fall somewhere between 10% and 25%.[11]  Within this range, the judge should take into account a number of considerations, which are set out in HKSAR v Chow Chun Sang.[12]  It was submitted that the judge had properly considered all the relevant factors and a discount of 20% was fair and appropriate. There were no other mitigating factors apart from the one-third discount properly given after plea.  Therefore, the sentence of 4 years and 4 months’ imprisonment was a proper sentence.

Consideration

12.In my judgment, the starting point adopted in respect of the quantity of narcotic was correct under the applicable guidelines. That starting point was discounted by 20% on the basis that most of the drugs were intended for the applicant’s own consumption.  This percentage discount was again appropriate and in accordance with authority.  It was never suggested by the applicant’s counsel that all of the drugs in question were for the applicant’s own consumption, and he would have had difficulty in mounting such a submission, given the terms of her admission of the Summary of Facts (see para 6 supra).

13.The discount of one-third for plea from the already discounted starting point was unimpeachable and in accordance with existing practice.  Accordingly, I cannot see any reasonable argument which might cast doubt on either the arithmetic or correctness of the judge’s sentence.

14.As for the ordering of the whole of the sentence to run consecutively to an existing sentence of 8 months’ imprisonment for assault occasioning actual bodily harm, that offence was, as the judge found, “a separate and distinct offence”, which was committed while the applicant was on remand for the trafficking offence.  I have examined the facts of that case, which occurred on 13 May 2015, and it was evidently a serious example of the offence, involving a gang of remand prisoners inside Lo Wu Correctional Institution attacking another remand prisoner with punches and kicks, such that it merited the imposition of 8 months’ imprisonment after plea.  I did not, in those circumstances, see that the judge in the present case could be faulted for ordering the two sentences to run consecutively.

15.In any event, it has now been clarified before me this morning by counsel for the respondent, and confirmed by the applicant, that the sentence of 8 months’ imprisonment in respect of the offence of assault occasioning actual bodily harm passed on 30 July 2015 at Fanling magistracy had in fact expired 3 days before the judge passed her sentence for the trafficking offence.  Consequently, the issue of consecutive or partially concurrent sentences did not, and does not, arise.

16.The application is accordingly refused.  The applicant is further advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of 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 her application for leave.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] The Applicant had indicated her plea of guilty at a pre-trial review before the same judge; Appeal Bundle p 76T.

[2] Summary of Facts, para 9, Appeal Bundle, p IX.

[3] This was accepted by the prosecution; Transcript of Mitigation, Appeal Bundle, p 75J.

[4] [2015] 1 HKLRD 450.

[5] (unrep., CACC 135/2011, 10 November 2011).

[6] Reasons for Sentence, Appeal Bundle, p 74D.

[7] [2014] 3 HKLRD 691.

[8] Legal Aid was refused on 2 February 2016.

[9] HKSAR v Akhemetzyanova [2012] 5 HKLRD 708, para 28.

[10] [2002] 1 HKLRD 69, at para’s 48-51.

[11] HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, para 19.

[12] ibid. at para 19.