HKSAR v. Ct Tu Bao Gong

CACC 392/2017

[2018] HKCA 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 392 OF 2017

(ON APPEAL FROM DCCC NO 529 OF 2017)

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Before: Hon Macrae VP in Court

Date of Hearing: 30 August 2018

Date of Judgment: 30 August 2018

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J U D G M E N T

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1.The applicant faced a charge sheet in the District Court containing a single charge of trafficking in 12.41 grammes of a mixture containing 9.92 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded guilty to the charge on 4 December 2017 before Deputy Judge M Chow (“the judge”) and was sentenced on the same day to 3 years and 2 months’ imprisonment.

2.On 8 December 2017, the applicant filed a Notice of application for leave to appeal (Form XI), and she now seeks leave to appeal against her sentence in person.

The facts

3.At about 19:18 hours on 13 March 2017, the applicant was seen walking along Pak Tin Street in Shek Kip Mei, Kowloon by a team of police officers who were conducting anti-narcotics operations in the Shek Kip Mei Estate.  The applicant was seen looking around furtively, with her right hand pressed on the right pocket of her jacket.  The police accordingly intercepted her for enquiry.

4.Upon a search of the applicant, two re‑sealable transparent plastic bags were found in the applicant’s pocket.  Each re‑sealable plastic bag contained 30 packets of what was suspected to be dangerous drugs.  The applicant further had possession of HK$260 in cash and a mobile telephone.  The applicant was duly arrested and, under caution, said that “the white powder [was] for [her] self-consumption”.

5.In a subsequent video recorded interview taken later that day, the applicant admitted, inter alia, that:

(i)  when she had mentioned “white powder” at the scene, she had meant heroin;

(ii)  at about 17:00 hours on 13 March 2017, having made enquiries from other drug addicts at the methadone clinic in Yee Yuk Street, she learned that heroin could be purchased at Block 21, Shek Kip Mei Estate;

(iii)  she went to Shek Kip Mei Estate at about 18:00 hours, where she met a drug dealer whom she had not seen before;

(iv)  she purchased 14 grammes of heroin for HK$7,000.  Acting on the dealer’s instructions, she then retrieved the two bags of heroin in a flowerbed near the pavilion of the industrial building area behind the Jockey Club at Shek Kip Mei Estate;

(v)  the two bags of heroin consisted of 30 white packets and 30 red packets.  Each of the white packets contained 0.3 of a gramme of heroin, while each of the red packets contained 0.2 of a gramme of heroin;

(vi)  she bought HK$7,000 worth of drugs at one time to save herself the trouble and minimize the risk involved;

(vii)  she had started taking drugs since about the age of 20, her daily consumption being 2 to 3 white packets of heroin; and

(viii)  although she was homeless and unemployed, she was not a CSSA recipient.  She claimed that the money used to purchase the drugs was inherited from her late mother.

6.The suspected dangerous drugs were later confirmed by the Government Chemist to be 9.92 grammes of heroin hydrochloride narcotic (3.64 grammes in one re‑sealable plastic bag and 6.28 grammes in another re‑sealable plastic bag).  The estimated street value of the dangerous drugs seized was HK$8,848.33.  The applicant specifically admitted that she possessed the dangerous drugs in question for the purpose of unlawful trafficking.

Mitigation

7.The applicant was 42 years of age at the time of sentence.  Her father and mother had passed away in 2005 and 2015 respectively.  Her husband had committed suicide in 1999 because of his heavy gambling debts, since when she had started consuming drugs.  At that time, the applicant had a son who was 3 years old.  She had stopped taking drugs after settling in Hong Kong in 2001.  However, since 2005 following the death of her father, she lapsed back into taking drugs intermittently whenever she felt pressure.  It was through her frequent contacts with drug dealers that she was eventually asked to traffic in dangerous drugs.  She had four previous convictions, which included two for possession of dangerous drugs and one for trafficking in a dangerous drug.

8.There was an initial attempt by the applicant’s legal representative to claim that part of the dangerous drugs seized was for the applicant’s own consumption.  However, this assertion was subsequently abandoned as a mitigating factor.

Reasons for sentence

9.The judge referred to the sentencing guidelines for trafficking in heroin laid down in R v Lau Tak-ming & Others[1], which provide for a starting point of 2 to 5 years’ imprisonment after trial for trafficking in up to 10 grammes of heroin narcotic.  In the present case, the applicant had trafficked in 9.92 grammes of heroin narcotic, for which the judge adopted a starting point of 4 years and 9 months’ imprisonment.

10.The applicant was then given a full one‑third discount for her plea and, accordingly, sentenced to 3 years and 2 months’ imprisonment.

Grounds of appeal against sentence

11.In a letter filed with the Court on 15 March 2018, the applicant argues two grounds of appeal against her sentence. Firstly, she complains that there is a disparity of sentence between her starting point and that adopted at first instance in HKSAR v Fan Yuk‑ling, DCCC 525/2017, where the judge imposed a sentence of 4 years and 3 months’ imprisonment on a defendant who was convicted of trafficking in 9.66 grammes of heroin narcotic, having also adopted a starting point of 4 years and 9 months’ imprisonment.  Secondly, the applicant gave birth on remand to a daughter and the child is now 11 months’ old.  She wishes to be re‑united with the child and her family as soon as possible.

The respondent’s reply

12.Mr Daryanani, on behalf of the respondent, submits that the defendant in DCCC 525/2017 had managed to persuade the sentencing judge that a small part of the dangerous drug, as opposed to a “significant proportion”, was indeed intended for her own consumption, for which a discount of 6 months’ imprisonment from the starting point was given.

13.Nevertheless, the respondent submits that on a strictly arithmetical approach, the starting point for the applicant should have been 5 years’ imprisonment.  The judge was already lenient in adopting a starting point of 4 years and 9 months’ imprisonment.  In any event, even if there was a difference in sentence with another case, it was a well‑established sentencing principle that any disparity between different sentences passed by different judges on different occasions was not a reason for reducing an otherwise proper sentence.

14.As for the applicant’s family circumstances, Mr Daryanani submits that extenuating family considerations cannot be mitigating factors in cases as serious as the trafficking of dangerous drugs.  In HKSAR v Cherif Mohamed[2], the Court held:

“13. Even if we were to accept the distressing circumstances of the applicant’s wife and family, it is clear that the courts have always taken the view that “a man must appreciate before he commits a crime that his family will suffer if he is caught and convicted”: per Cons V-P in R v Shipra [1988] 2 HKLR 493, 494. It is also well established that family circumstances play virtually no part in the mitigation of drug offences. The dreadful nature of the illicit drug trade and the evil that the suppliers of dangerous drugs inflict on others compel this policy position. In any event, we are unable to see how a reduction in sentence, on a purely humanitarian basis, would be of any assistance to the applicant unless it anticipates his immediate release which, having regard to the seriousness of the present offence, is inconceivable.”

15.The respondent further points out that the applicant was fortunate that her sentence was not enhanced for her previous conviction for trafficking in dangerous drugs, for which she had been sentenced in the District Court to 4 years and 2 months’ imprisonment.

Consideration

16.The starting point in this case could well have been 5 years’ imprisonment on an arithmetical application of quantity to guideline.  In fact, it was 4 years and 9 months’ imprisonment.  Indeed, it could also have been enhanced because of the applicant’s previous conviction for trafficking in dangerous drugs.  It might be said, therefore, that the applicant was perhaps fortunate that the judge adopted the starting point she did.

17.There can be no argument as to disparity between two sentences passed in unrelated cases on separate occasions by different judges.  In any event, there is an explanation, albeit not a principled reason, for the difference in the two sentences because the judge in DCCC 525/2017 reduced that defendant’s sentence for her own consumption of part of the drugs seized.  However, the starting points were otherwise the same.

18.Unfortunate though the circumstances of the applicant and her child are, the courts have said time and again that extenuating family circumstances do not provide any mitigation for crimes as serious as the trafficking of dangerous drugs.

Conclusion

19.I can see no reasonably arguable grounds of appeal against sentence and the application must be 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 were to come to the view that there was no justification for the renewal of the application.

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

The Applicant appeared in person