HKSAR v. Lai Shuk Yee, Zoe

CACC 5/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 5 OF 2017

(ON APPEAL FROM DCCC NO 843 OF 2016)

________________________

________________________

Before: Hon Macrae JA in Court

Date of Hearing: 26 May 2017

Date of Judgment: 26 May 2017

________________________

J U D G M E N T

________________________

1.The applicant pleaded guilty in the District Court to a charge of unlawfully trafficking in 162.6 grammes of a powder containing 83 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 30 December 2016, the applicant was sentenced by HH Judge Woodcock (“the judge”) to a term of 4 years’ imprisonment.

2.By way of a Notice of application for leave to appeal (“Form XI Notice”), filed on 5 January 2017, the applicant sought leave to appeal against her sentence.

The facts

3.At about 4:24 am on 24 June 2016, the applicant was seen acting furtively outside an electricity meter room situated on 7/F, Tsui On House, Tsui Ping Estate, Kwun Tong.  At the time, she was carrying a black handbag and was using a key to open the padlock of the meter room.  The police stopped the applicant and conducted a search on her, as a result of which they found in the black handbag she was carrying a total of six bags containing the dangerous drugs, the subject matter of the charge.

4.Upon arrest and caution, the applicant admitted that she was asked by a person named “Ar Chi” to hide the ketamine in the meter room and that she did so for a reward of $500.

5.In a subsequent video recorded interview, the applicant confirmed her knowledge of the nature of the drugs found earlier in her handbag.  She also said that, prior to her arrest, she went to a flower bed nearby, where she picked up the drugs and the key to the meter room, according to Ar Chi’s instructions.

6.The estimated retail value of the dangerous drugs in question was about $21,200.

7.In pleading guilty to the offence, the applicant accepted that she was trafficking in all of the dangerous drugs, the subject matter of the charge.

Mitigation

8.The applicant was 34 years of age and had 8 previous convictions, two of which were in respect of drugs related offences (but not trafficking in dangerous drugs) dating back to 1999.  At the time of the offence, she was working as a shop assistant, earning a monthly salary of $7,000.

9.It was submitted that the applicant had only relapsed into taking drugs since March 2016 because of the pressure of work[1].  Two mitigation letters, written by the applicant’s employer and her mother respectively, were produced to the court.  Both letters spoke positively of the applicant as both an employee and a daughter.

10.In urging a lenient sentence to be passed, defence counsel confirmed in open court that the applicant had had explained to her, and had acknowledged her understanding of, the relevant sentencing guidelines in relation to the trafficking of dangerous drugs.

Reasons for sentence

11.In passing sentence, the judge noted that the best mitigation was the applicant’s guilty plea.  Despite the mitigation that the applicant had only relapsed into her drug habit from March 2016, the judge noted from the applicant’s criminal record that, in 2005, 2007 and 2011, the applicant had been sentenced to be detained in a Drug Addiction Treatment Centre for convictions not related to dangerous drugs.

12.The judge referred to the case of Secretary for Justice v Hii Siew Cheng[2] for the relevant sentencing guidelines for trafficking in ketamine; and noted that the appropriate sentence for trafficking in between 50 and 300 grammes of the drug should be in the range of 6 to 9 years’ imprisonment.

13.The judge adopted a starting point of 6 years’ imprisonment for the quantity concerned and reduced it by one third to reflect the applicant’s guilty plea, resulting in a sentence of 4 years’ imprisonment.

Grounds of appeal against sentence

14.In her Form XI Notice, the applicant did not state any grounds of appeal.  Before me this morning, she applied for an adjournment to find a lawyer.  Having listened to her application and discovered that she has so far taken no steps at all to find any lawyer, I refused her application for an adjournment of this matter.

Respondent’s submissions

15.Mr Prakash Daryanani, in his written submissions on behalf of the respondent, submitted that the starting point for trafficking in 83 grammes of ketamine narcotic, if calculated on a purely arithmetical basis under the guidelines, would have been 6 years and 4 months’ imprisonment; thus 4 months higher than the starting point actually adopted by the judge.  As such, it was submitted that the application for leave to appeal against sentence was devoid of merit.

Consideration

16.The sentence in the present case is unimpeachable.  As Mr Daryanani points out, if one were to adopt a strictly arithmetical approach to the quantity of dangerous drugs concerned as against the relevant guidelines in Secretary for Justice v Hii Siew Cheng, the starting point for sentence after trial would have been rather higher than the starting point in fact adopted.  There can, therefore, be no valid complaint about the judge’s adoption of a 6-year starting point.

17.I should add, for the sake of completeness, that there was an initial assertion by defence counsel in mitigation that one of the packets of dangerous drugs seized was for the applicant’s own consumption. However, this aspect of mitigation was expressly withdrawn by defence counsel after a short adjournment to discuss the matter with his client, both the prosecutor and the judge having indicated that they did not accept the assertion at face value.  This issue, having not been taken further after due consideration by the applicant with her counsel, cannot now be advanced as a basis for impugning an otherwise entirely proper sentence.

Conclusion

18.The application for leave to appeal against sentence is refused.  The applicant is duly advised that she has the right to renew her application for leave to appeal against sentence to the Court of Appeal, but she 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 Franco Kuan SPP, of the Department of Justice, for the Respondent (Mr Prakash L Daryanani SPP in written submissions for the Respondent)

The Applicant appeared in person