HKSAR v. Sit Yan Yi

CACC 133/2020

[2021] HKCA 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2020

(ON APPEAL FROM HCCC NO 64 OF 2020)

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Before:  Hon Zervos and M Poon JJA in Court

Date of Hearing:  21 December 2021

Date of Judgment:  21 December 2021

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.The appellant with leave from a Single Judge appeals her sentence of 5 years and 8 months’ imprisonment, which was imposed on her by Campbell-Moffat J (the judge) after pleading guilty to one count of trafficking in a dangerous drug, namely 24.20 grammes of Ice narcotic, and one count of possession of 0.28 gramme of herbal cannabis and 0.05 gramme of nimetazepam.

2.The drugs and related paraphernalia were found in a hotel room that the appellant claimed she had booked at the instigation of another person by the name of “Roy”, who was the trafficker of the drugs and who supplied her with drugs.  She was accompanied by a male companion who was separately convicted on his own plea for possession of drugs found on his person.  He also claimed that the drugs belonged to “Roy”.

3.The appellant was 31 years of age at the time of sentence.  She had no previous convictions for drug offences, although she had two previous convictions for gambling, for which she was fined.  She had previously been married and had a son who was 10 years of age.  She was responsible for the care of her son and mother.  After she got divorced, she mixed with bad company, and worked in a nightclub and started taking drugs.  Whilst in prison, she has taken up courses in marketing and accounting and shows positive signs of turning a new leaf.

4.The judge in sentencing the appellant for the trafficking count adopted a starting point of 8 years’ imprisonment for the Ice narcotic which was in accordance with the relevant sentencing guidelines: HKSAR v Tam Yi Chun [2014] 3 HKLRD 391.  She reduced the notional starting point by one third for the appellant’s guilty plea to 5 years and 4 months’ imprisonment.  There is no cause for complaint in the judge’s approach with this sentence. 

5.The respondent seeks to argue that the sentence could have been further enhanced for the role of the appellant as a manager and operator of a drug trafficking centre.  Based on the agreed facts, we cannot agree with this description of her role in this offence.  In our view, she was a storekeeper for the drugs in question.

6.The issue in this appeal is the judge’s approach in sentencing the appellant for the possession count.  The judge acknowledged that the amounts of drugs involved were “truly insignificant” and for the appellant’s personal consumption with no latent risk factor being present.  It is the case that the two drugs involved were of a less serious category and of minuscule quantities.  The judge adopted a sentence of 3 months’ imprisonment for each drug, which she added together and reduced by one third for the appellant’s guilty plea to 4 months’ imprisonment.  She then ordered that this sentence be consecutive to the sentence for the trafficking count.  In our view, this approach was wrong.

7.We feel a more realistic assessment should have been made of the sentence for the possession count, bearing in mind the sentence for the trafficking count.  The appellant admitted that she had a drug addiction and that the drugs were for her own consumption.  Given the nature and quantity of the drugs involved, we would have adopted a starting point of 6 weeks’ imprisonment, which after a reduction of one third would have resulted in a sentence of 4 week’s imprisonment. Taking into account the totality principle, we would have ordered that this sentence be served concurrently with the sentence for the trafficking count. 

8.It is important when applying the totality principle, not only to consider the overall sentence, but also to assess the sentences for the individual offences against each other, particularly when dealing with drug offences involving both possession of a very small quantity of drugs and trafficking of a large quantity of drugs, where the drugs in the possession count would add, very little, if anything to the sentence for the trafficking count: HKSAR v Wong Kam Wo [2001] 2 HKLRD 290, 294A-E.  However, there will be occasions where a consecutive element is required but that will depend on the particular facts and circumstances of the case.

9.The appeal is allowed and we set aside the sentence on the possession count and substitute it with a sentence of 4 weeks’ imprisonment which we order to be served concurrently with the sentence of 5 years and 4 months’ imprisonment for the trafficking count.

Mr Andrew Cheng, SPP, of Department of Justice, for the respondent

Ms Ho Yuen Han Anna, instructed by Simon Si & Co, assigned by the Director of Legal Aid, for the appellant