HKSAR v. Tsang Sin Yi

CACC 233/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2016

(ON APPEAL FROM HCCC NO. 100 OF 2014)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

1.On 8 August 2013, the appellant (Tsang Sin Yi) was arrested by the police when she walked out of a flat (the flat) on 13/F of Kwok Hong Building in Lai Chi Kok Road during an anti-dangerous drugs operation.  The appellant was carrying a leopard-print backpack. The appellant was taken back to the flat with her consent.

2.Upon entering the flat, a police officer searched the appellant’s backpack and found two keys and five packets of dangerous drugs.  Under cautioned, the appellant said, “These goods belong to my boss ‘Ah Shui’.  I am only responsible for delivering them”.

3.A search of the flat resulted in the seizure of over 70 bags of “ice”, 21 bags of cocaine and tablets of other dangerous drugs.  There was also a large quantity of drug packing paraphernalia, including a large number of resealable plastic bags, an electronic scale, a pair of pliers and a broken glass tube.  The two keys found from the appellant’s backpack could open the locks of the main door and the metal gate of the flat and her fingerprints and DNA were found on various items inside the flat.

4.The five packets of dangerous drug found inside the appellant’s backpack were 4.85 grammes of a crystalline solid containing 4.76 grammes of “ice”.  The various items found inside the flat were:

(i) 150.89 grammes of a crystalline solid containing 148.52 grammes of “ice”;

(ii) 19.73 grammes of a solid containing 18.29 grammes of cocaine; and

(iii) 16 tablets containing small quantities of methamphetamine and ketamine as well as 0.03 grammes tablet fragments containing methamphetamine.

5.The street values of the dangerous drugs in question was HK$127,865.

6.The appellant claimed that she was initially employed by “Ah Shui” to take care of the flat, but was later asked to deliver dangerous drugs and to collect money for him from time to time.  The appellant admitted that she was aware of the nature of the drugs in her backpack.

7.The appellant was charged with trafficking in the dangerous drugs found both in her backpack and inside the flat, namely 155.74 grammes of a crystalline solid containing 153.28 grammes of “ice”, 19.73 grammes of a solid containing 18.29 grammes of cocaine, and tablets containing small quantities of methamphetamine and ketamine.

8.The appellant subsequently gave information to the police which led to the arrest of “Ah Shui” who was charged with conspiring with the appellant to traffic in dangerous drugs.  “Ah Shui” pleaded not guilty to the charge, but was convicted principally on the appellant’s evidence.

9.On 22 July 2016, the appellant appeared before Tong J (the judge) and pleaded guilty to the charge she faced.  Based on the tariffs laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the judge adopted a starting point of 13 years.  Because of the guilty plea and the appellant’s “serious courage to stand up to expose and testify against …the operator behind the scene”, the judge reduced the starting point by about 52% and sentenced the appellant to 6 years and 2 months’ imprisonment.

10.With leave granted by a single judge of the Court of Appeal, the appellant, represented by Mr Andy Hung, appealed against sentence.  At the end of the hearing, we allowed the appellant’s appeal and reduced her sentence to 5 years and 9 months’ imprisonment for the following reasons.

11.There was no dispute that the judge was wrong to rely on the tariffs laid down in Tam Yi Chun, a decision of the Court of Appeal dated 9 June 2014 when the offence in question was committed by the appellant on 8 August 2013.  The issue was what would be the appropriate sentence if the appropriate guidelines as decided in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 were applied. 

12.Ignoring the minute quantity of methamphetamine and ketamine as the judge did, the total quantity of dangerous drugs involved were 153.50 grammes of “ice” and 18.29 grammes of cocaine.

13.When dealing with drug trafficking cases involving more than one type of dangerous drugs, the Court of Appeal had adopted various approaches and tests (see HKSAR v Yip Wai Yin and anor [2004] 3 HKC 367, HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Yau Ka Ming (unreported CACC 144/2013).

14.Bearing in mind the case involved 153.50 grammes of “ice” and 18.29 grammes of cocaine, we were satisfied that the proper approach was the “combined” approach.  In terms of both quantity and potency, the more serious drug was “ice” and adopting a lenient view in favour of the appellant as the judge did, we were satisfied that the appropriate sentence for the quantities involved was 11 years.  Taking into consideration the presence of 18.29 grammes of cocaine, there should be an upward adjustment of 1 year to arrive at an overall starting point of 12 years’ imprisonment.

15.The appellant provided information to the police which led to the arrest of “Ah Shui” and she gave evidence against him resulting in his conviction.  The judge said “it would take serious courage” for her to do so and thus gave her a discount of about 52%.  We felt obliged to give the appellant a similar discount otherwise she would have a genuine sense of grievance.

16.We were satisfied that the proper sentence should be 5 years and 9 months.  We therefore allowed the appellant’s appeal against sentence and reduced her sentence from 6 years and 2 months to 5 years and 9 months.

Mr David Chan Ag SADPP, of the Department of Justice, for the Respondent

Mr Andy Hung, assigned by the Director of Legal Aid, for the Appellant