HKSAR v. Lam Wai Chi

CACC 78/2019

[2019] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 78 OF 2019

(ON APPEAL FROM HCCC NO 390 OF 2018)

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Before: Hon Zervos JA in Court

Date of Hearing: 10 October 2019

Date of Judgment: 10 October 2019

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J U D G M E N T

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1.The applicant pleaded guilty to a single offence of trafficking in a dangerous drug, namely 40.3 grammes of a crystalline solid containing 30.2 grammes of methamphetamine hydrochloride, commonly known as Ice. She was sentenced to 5 years and 6 months’ imprisonment.

2.When the applicant was arrested for this offence, she was in a taxi with a friend and the drugs were contained in three packets taped to the waistband of her trousers.  She stated to the police officers that the three packets of drugs were for her own consumption.  She repeated this claim in a subsequent video-recorded interview.  However, in the facts that she agreed when she entered her plea of guilty she admitted that she was trafficking in the drugs seized from her.  The estimated retail value of the drugs was about $28,000.

3.When the applicant was sentenced, counsel on her behalf submitted that a small amount of the drugs were to be given to her for her own use as a reward for delivering the drugs.    

4.The judge in sentencing the applicant applied the tariff case of HKSAR v Tam Yi Chun [2014] HKC 256 and adopted a starting point of 8 years and 3 months’ imprisonment.  The judge reduced the starting point by one third for the applicant’s timely plea of guilty to 5 years and 6 months’ imprisonment. 

5.The judge made no allowance for the submission that a small portion of the drugs were for self-consumption, even though the applicant had tested positive for amphetamine when she was arrested and had prior convictions for drug related offences.  The judge did not accept that some of the drugs were for the applicant’s own use for three reasons.  First, she did not accept the applicant’s claim that a small amount of the drugs would be taken from the three packets as her reward for delivering the drugs.  Secondly, she found that given the way the drugs were packed and concealed, there was no prior agreement for her to receive a small portion from the packed drugs.  Thirdly, she found that as the applicant was unemployed at the time of the offence, she did not have the financial means to purchase drugs for her own consumption. 

6.The applicant in her grounds of appeal against sentence merely complains that the sentence was too heavy and wishes to have the sentence reduced. 

7.The judge applied the correct starting point and gave the applicant the normal reduction of one third for a timely guilty plea.  She justifiably rejected the claim that a small amount of the drugs were for the applicant’s self-consumption. 

8.Accordingly, there is no basis for complaint for the sentence passed on the applicant and leave to appeal against sentence is refused. 

9.The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, 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 her application. 

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

The applicant appeared in person