HKSAR v. Lam Sui Tan

CACC 85/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85OF 2017

(ON APPEAL FROM DCCC NO. 1150 OF 2016)

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J U D G M E N T

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1.The applicant seeks leave to appeal against the sentence of 32 months’ imprisonment imposed on her on 24 March 2017 by Deputy District Court Judge Don So, following her plea of guilty to a charge of unlawfully trafficking on 30 September 2016 in a dangerous drug, namely 7.50 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant gave notice of the application by filing Form XI ^[1] with the Court on 31 March 2017.

The facts

2.The applicant accepted that at the time that she had been intercepted by police officers, at about 2:30 p.m. on 30 September 2016 at Cheung Shing Path outside Tai Pei Tau Rest Gardens, Yuen Long, inside her black shoulder bag, she was in possession of a total of 7.50 grammes of heroin hydrochloride.  A total of 1.42 grammes of heroinhydrochloride was found in a total of 14 plastic straws, contained in two transparent resealable plastic bags. Six other transparent resealable plastic bags contained a total of 60 plastic straws, which contained a total of 6.08 grammes of heroin hydrochloride.  The applicant accepted that she unlawfully trafficked in that heroin hydrochloride.

Reasons for sentence

3.In his reasons for sentence, the judge noted that the applicant was 46 years of age, unemployed and living on public assistance.  Further, he noted that she had 19 previous criminal convictions, three of which were for possession of dangerous drugs and one for unlawfully trafficking in dangerous drugs.

4.Having adverted to the guidelines for sentencing set out in the judgment of this Court in The Queen v Lau Tak Ming ^[2], the judge said that unlawfully trafficking in an amount of up to 10 grammes of heroin hydrochloride fell within the range of 2 to 5 years’ imprisonment.  In the result, he stipulated a starting point for sentence of 4 years’ imprisonment.  Having noted that the applicant had indicated that she intended to plead guilty at first opportunity and had pleaded guilty, the judge afforded the applicant a discount of one-third from that taken as the starting point for sentence.  In the result, the judge sentenced the applicant to 32 months’ imprisonment.

Grounds of appeal against sentence

5.In the grounds of appeal against sentence attached to Form XI, the applicant simply asserted that she applied for leave to appeal against sentence.

6.The Court wrote to the applicant, by letter dated 13 June 2017, noting that her application for legal aid had been refused and directing her :

“If you intend to proceed with the application on your own, please prepare your grounds of appeal and submissions in writing. Your grounds of appeal and written submissions should be sent to the Court within 14 days from the date of this letter...”

However, no further grounds of appeal or any written submissions have been filed with the Court.

7.Today the applicant informed the Court that she had intended to abandon her appeal against sentence.  However, she had been informed of today’s hearing date only yesterday. As a result, she had not the opportunity to abandon her application.

The respondent’s submissions

8.For the respondent, Mr Daryanani opposed the application for leave to appeal against sentence.  He submitted that there was no merit in the application.  He said that on a mathematical approach to the determination of the starting point, unlawfully trafficking in 7.5 grammes of heroin attracted a sentence of 51 months’ imprisonment.  Affording the applicant a discount, from that starting point for sentence, of one-third for her plea of guilty, would result in a sentence of 34 months’ imprisonment.  In those circumstances, he submitted that the applicant had no legitimate complaint.

Conclusion

9.I am satisfied that the applicant has advanced no reasonable arguable grounds of appeal against sentence and I refuse the application for leave to appeal against sentence.

10.The applicant is advised that she has the right to renew her application for leave to appeal against sentence to the Full Court but is informed that if she does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of her application shall not be reckoned as part of the term of her sentence.

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

The applicant appeared in person