HKSAR v. So Fung Yiu

CACC 498/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 498 OF 2004

(ON APPEAL FROM HCCC NO. 323 of 2003)

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BETWEEN

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Before:   Hon Stuart-Moore Ag CJHC and Bokhary J

Date of Hearing: 6 September 2005

Date of Judgment: 6 September 2005

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J U D G M E N T

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Stuart-Moore, Ag. CJHC (giving the judgment of the Court):

1.On 20 July 2004, the applicant pleaded guilty in the Court of First Instance to trafficking in a mixture containing 751.07 grammes of heroin hydrochloride.  She was sentenced on 1 November 2004 by Deputy Judge Wright to 14 years’ imprisonment and now seeks leave to appeal against the length of this term.

2.The facts were straightforward.  The heroin, valued at about $430,000, was discovered on 9 July 2003 at an address in Tsing Yi where the applicant was found alone.  Various items suitable for packaging drugs were also found in the premises.  The applicant admitted being employed by someone to package the drugs after which someone else would tell her where to deliver them.

3.The judge rightly indicated that the quantity of heroin under the guidelines in  R v Lau Tak-ming & Ors [1990] 2 HKLR 370 fell into the band for 600 grammes or more which attracts a sentence of 20 years and upwards.  He adopted 21 years as an appropriate starting point and reduced this to 14 years to reflect the guilty plea which was the only mitigation of any substance.

4.The applicant has put forward two grounds of appeal in writing indicating, firstly, that the judge may have had a “misunderstanding” about the circumstances in which she pleaded guilty.  She has added to her written remarks by explaining to us why her plea was so late in coming.  There was, however, no misunderstanding in principle.  The judge had remarked on the applicant’s lateness in entering her plea of guilty as a response to defence counsel’s suggestion that she was “genuinely remorseful”, saying:

“You entered your plea of guilty only at the last possible moment.  When you first appeared in court, you indicated to the magistrate that you denied that the drugs were yours.  Subsequently, you told the magistrate that you had been inside the room asleep and had no idea that the drugs were there.  After your committal to the High Court, at a pre-trial review some five weeks before the trial, you were still denying the offence.  In addition, you were indicating that you intended to challenge the admissibility of the statement made by you under caution as well as of the fingerprint evidence and suggested even that the time period allocated for the trial was inadequate.

Current sentencing practice still requires me to afford you the full one-third discount from the starting point.  I shall do so but repeat the words of the Court of Appeal on previous occasions that that discount constitutes the high watermark for a plea of guilty entered by a person with a clear record.”  (Appeal bundle p. 8)

5.It transpired during these proceedings that the only real complaint which the applicant had with any of the prosecution’s case was that she had been unaware of the existence of a small quantity of drugs which apparently are not depicted in any of the photographs shown to us but, as she accepted, this quantity would have made little or no difference to the sentence ultimately imposed. 

6.In her second ground, the applicant drew our attention to HCCC 49/2004, another case altogether, in which she has discovered that, for a larger quantity of heroin, the first defendant (D1) received a much shorter sentence than she (the present applicant) is now serving.

7.We have been able to check the file in HCCC 49/2004 and it is apparent that a ten-year sentence was imposed, following D1’s plea of guilty before the start of her re-trial, after the judge adopted a 15-year starting point for trafficking in 980 grammes of heroin hydrochloride.  There were, however, special circumstances which were taken into account by the judge about which the present applicant may not have been aware.  In short, D1 had apparently been acting under the instructions of her older male co-habitee (D2) for whom a different judge had taken an 18-year starting point at the original trial.  D2 had pleaded guilty and was for this reason sentenced to 12 years’ imprisonment.  It was clear to the judge who sentenced D1 that her role was not as serious as D2’s part in the offence.  No doubt D1 was fortunate to have received such a low sentence but the judge who sentenced her was understandably seeking to achieve parity between D1 and D2.

8.Whilst we can appreciate the applicant’s concern at being treated more harshly than D1 in HCCC 49/2004, this was not lenient sentencing on the particular facts of that case without good reason.  The knowledge of what happened in that case may, we hope, dispel some of the feelings of grievance felt by the present applicant but, as this court has so often had to say, and as the applicant has made clear she fully understands, a more lenient sentence imposed in similar circumstances in one case cannot amount to a ground for successfully appealing a proper sentence imposed in another, wholly unrelated, case.  If this were not so, this court would be for ever comparing the sentences imposed for all manner of crimes and adjusting those sentences where any disparity was detected.

9.In the present case, the sentence was carefully considered before being passed in full accordance with the guidelines.

10.There is no merit in the application and it is dismissed.

Ms Evena Chan, SADPP, of the Department of Justice, for the Respondent.

The Applicant, in person.