HKSAR v. Ip Tsz-kwan

CACC000391/1999

CACC 391/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 391 OF 1999

(ON APPEAL FROM HCCC 146 OF 1999)

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Coram: Hon Mayo VP, Stock JA, and Lugar-Mawson J in Court

Date of Hearing: 6 June 2002

Date of Judgment: 6 June 2002

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.On 12 May 1999 at Eastern Magistrates Court, the Applicant, Ip Tsz Kwan, pleaded guilty before a Permanent Magistrate to a single charge of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance. She was committed to the Court of First Instance for sentence pursuant to s.81B of the Magistrates Ordinance.

2.On 16 July 1999 the Applicant confirmed her plea of guilty to that charge in the Court of First Instance and admitted the Prosecution's summary of facts before V. Bokhary J, who convicted her and sentenced her to a term of 12 years' imprisonment.

3.The Applicant sought leave to appeal against the sentence imposed on her by a notice dated 26 July 1999. In her homemade grounds of appeal, which accompanied that notice, the Applicant contended that her sentence of 12 years' imprisonment was manifestly excessive because at the time of her commission of the offence she was under the age of 21. She also claimed that it was her first offence. This was an incorrect statement, because she had been convicted of an offence of theft at Tuen Mun Magistrates Court on 2 August 1994 and placed on probation for 18 months.

4.On 7 September 1999, the Director of Legal Aid refused the Applicant legal aid, on the merits of her case, to prosecute her application for leave to appeal against sentence and the Applicant abandoned her application for leave by a notice dated 8 October 1999. Her application was marked dismissed on 11 October 1999.

5.By a further notice, dated 26 March 2002, the Applicant seeks leave to treat her abandonment as a nullity and renews her application for leave to appeal against sentence out of time. The notice is supported by her affirmation, dated 26 March 2002, and fresh homemade grounds of appeal.

Fresh grounds of appeal against sentence

6.In her affirmation and fresh grounds of appeal, the Applicant repeats that at the time of both the offence and sentence she was only 20. She contends that she abandoned her original application for leave to appeal because a friend who had promised to raise money to retain a lawyer for her disappeared and she did not know what to do as a result. Further, she says that having served 2 years and 8 months of her sentence, combined with the support and encouragement throughout this period of her family, she now realises how valuable her freedom and her family are to her. This morning in her address to us, she, essentially, repeated the matters set out in the affirmation and the a homemade grounds of appeal.

Facts

7.Briefly, the facts the Applicant admitted are these. At around 6:43 am on 12 January 1999, a party of police officers conducting anti-narcotic operations in Kowloon City noticed the Applicant standing outside a 7-11 convenience store in Liberty Avenue. She was carrying a green knapsack and holding a green paper bag in her right hand. The police officers decided to approach the Applicant but, as they did so, the Applicant hurriedly boarded a taxi. The officers ran and stopped the taxi, and told the Applicant to get out. A search of the green paper bag revealed two blocks of a substance that the officers suspected to be dangerous drugs. When asked by the officers what the blocks were, the Applicant replied "white powder". She was then cautioned and arrested for trafficking in dangerous drugs. After caution, the Applicant said, among other things: "It was Ah Yee who gave me a thousand dollars and asked me to take the white powder here." She said that she did not know Ah Yee's full name or her whereabouts. The Applicant also admitted that she was herself a drug addict.

8.Upon analysis by the Government Laboratory, the two blocks found in the Applicant's green paper bag were found to contain a total of 696.31 grammes of a mixture, containing 624.63 grammes of heroin hydrochloride. The estimated street retail value of the heroin was HK$385,000.

Mitigation

9.In mitigation the Applicant's counsel stressed her early plea of guilty; her frank admissions to the police, combined with her attempts to provide details about Ah Yee when interviewed under caution; the fact Ah Yee had taken advantage of her in asking her to act as a courier of a large amount of drugs for a very small reward; her young age at the time of the offence and the fact that she had a supportive family.

Reasons for sentence

10.In sentencing the Applicant, the judge said that she took into account everything that had been urged on her behalf in mitigation. She commented that the Applicant's principal mitigation lay in the fact that she had pleaded guilty in the Magistrate's Court, thus saving even more time and effort than would have been saved had she entered guilty pleas on the first day of trial. The judge was clearly aware of the guidelines for this offence laid down in R v Lau Tak-ming and Anor [1990] 2 HKLR 370, and treating the Applicant, as the Judge put it: '... as leniently as my duty to the public permits me', sentenced the Applicant to a term of 12 years' imprisonment.

Discussion

11.Today the applicant seeks to revive her application for leave to appeal against sentence two and half years after she abandoned her original application. In R v Medway [1976] 62 Cr App R p.85 the English Court of Appeal, in a full court of five judges, stated the principles applicable in relation to such applications. The criterion which the English Court of Appeal established - and it was distilled from a number of earlier cases - was that where the abandonment was not the result of a deliberate and informed decision on the applicant's part, then the court had jurisdiction to consider the abandonment as a nullity.

12.The Medway principles have been followed in Hong Kong, in many cases. In HKSAR v. Seck Kai-tong, CACC 205 of 1996 (unreported) this court put the test in this way:

"It is well establish that there is no inherent jurisdiction on the part of the court to permit the previous abandonment of an application for leave to appeal to be treated as a nullity, unless it can be shown that in some way the mind of the applicant had not gone with the act of abandonment."

13.In this present case the Applicant, in October 1999, decided to abandon her application for leave to appeal against sentence of her own volition after she was refused legal aid, and after her friend disappeared after failing to arrange private legal representation for her. She has come nowhere near making out the type of exceptional circumstances in which her abandonment can be treated as a nullity.

The sentence imposed

14.As to the Applicant's sentence; the judge followed Lau Tak-ming and adopted a starting point of 20 years imprisonment. She gave the Applicant a very generous discount of 8 years imprisonment for her plea of guilty and the matters that she found went to the Applicant's mitigation. At 20, at the time of committing the offence, the Applicant was not of extreme youth. It is well accepted that, save in very exceptional circumstances, young age is not a mitigating factor in sentencing drug traffickers. The Applicant's sentence was a proper one and is not open to criticism.

Decision

15.For the reason we have given, the Applicant's application for us to treat her earlier abandonment of her application for leave to appeal against sentence as a nullity is refused.

Representation:

Mr P S Chapman, SADPP, Department of Justice, for the HKSAR

The Applicant, IP Tsz-kwan, in person