HKSAR v. Fok Lin Hing

CACC000508/2001

CACC 508/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 508 OF 2001

(ON APPEAL FROM HCCC 298/2001)

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

Date of Hearing: 15 May 2002

Date of Judgment: 15 May 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.The Applicant, Fok Lin Hing, a woman of 37 who worked as a nightclub waitress, was committed for sentence in the Court of First Instance under s.81B of the Magistrates Ordinance having pleaded guilty in the Magistrates Court to two counts of trafficking in dangerous drugs. The first count related to 2.62 grammes of cannabis and 23.65 grammes of a crystalline solid containing 23.14 grammes of methamphetamine hydrochloride, the substance commonly called Ice. The second count related to 45.95 grammes of cannabis and 174.85 grammes of Ice having a narcotic content of 173.62 grammes.

2.On 26 October 2001, the Applicant appeared before Pang J and confirmed her pleas of guilty to those two counts. She was sentenced to 5 years and 4 months' imprisonment on the first count and 8 years' imprisonment on the second; 5 years of that sentence was to run concurrently with the sentence on the first count, the remainder consecutively, making her total sentence one of 8 years and 4 months.

3.In sentencing the judge, in accordance with the guidelines laid down by this Court in AG v Ching Kwok-hung [1991] 2 HKCLR 125, adopted a starting point of 8 years' imprisonment in respect of the first count and 12 years' imprisonment in respect of the second. He gave the Applicant the usual one-third discount to reflect her guilty pleas and remarked that he could find no other mitigating factors in her case.

4.The Applicant had one previous conviction, this was for fighting in a public place, committed in 1982, when she must have been 18. She was bound over in the sum of $200 to keep the peace for one year for that offence.

5.The Applicant now applies for leave to appeal against her sentence. She represents herself before us, having been refused legal aid.

Facts

6.The facts are simple. The drugs involved in the first count were found in the Applicant's handbag when a party of police officers intercepted her, at around 12 noon on 18 April 2001, leaving the Chung Mei Building in Tai Kok Tsui Road, Kowloon. She was arrested and cautioned, after caution, she replied,

"Ah Sir, the cannabis is only for my own consumption. The Ice is to be sold by me to my friends for the fun of it with them."

7.The drugs involved in the second count were found soon after, when the police searched in a flat on the first floor of the building from which the Applicant had been seen leaving. In relation to these drugs she told the police on arrest,

"Ah Sir, I am arrested by you this time. I don't want to implicate anybody. The goods is mine."

8.In a later interview, the Applicant told the police that she intended to take the Ice to the nightclub where she worked to sell it to her colleagues. She had bought five ounces at $2,000.00 per ounce and intended to divide it up into large and small packets for sale. The larger packets were to be sold for $1,000.00 each and the smaller ones for $250.00. She said that the cannabis was mainly for her own consumption, but she intended to give some of it to her friends.

9.The Ice had an estimated street value of $76,345.08.

Ground of Appeal

10.The Applicant complains that the judge failed to give her a sufficient discount to reflect the fact that, as she puts it in her home made grounds of appeal, it was "... the first time (she) broke the law". This, technically, is an incorrect assertion given her 1982 conviction, however we accept that her criminal record was a minor one and that her sole previous offence was committed over 18 years before the commission of the offences we are concerned with. This fact was advanced to the judge in mitigation by her counsel at trial, as were other mitigating factors such as the Applicant's timely guilty pleas, her frank admissions and cooperation with the police, and her medical and family circumstances.

11.We have this morning seen letters from the Applicant and from her 12-year-old daughter. In her letter, the Applicant repeats matters concerning her family circumstances and the financial hardship under which her family labour. In her letter, her daughter speaks of how much she loves and misses her mother. The Applicant's family circumstances were before the judge as part of the Applicant's mitigation. The distress her child is obviously, and quite naturally feeling, should have been anticipated by the Applicant before she committed her offences and deterred her from doing so.

12.In her address to us this morning the Applicant repeats matters relating to her family circumstances.

13.Harsh though it may seem to the Applicant, the plain fact of the matter, as Mayo JA observed in HKSAR v Lau Kin Cr App No. 147 of 1998 (unreported), is that in cases such as this, where substantial quantities of dangerous drugs are involved, very little credit can be given for previous good character.

14.This has long been recognized as being the rule; as long ago as 1979 Roberts CJ observed in NG Tat-shing & Anor v R [1977-1979] HKC 71, at p. 80 C-E:

"The court has made it clear on other occasions that, although the general rule may be that an accused person with a clear record should not normally be given a deterrent sentence, there are exceptions to this general rule. Among those exceptions are cases of unlawful trafficking in drugs, kipnapping, and cases where there is an element of corruption."

15.Whatever credit could have been given to the Applicant to reflect her slightly tarnished previous good character was subsumed in the entirely proper one-third discount the judge gave her to reflect her guilty pleas.

16.The total weight of the narcotic content in the Ice in both counts was 196.75 grammes and the sentences the Applicant received are well in accordance with the sentencing guidelines for offences of trafficking in Ice laid down by this Court in AG v Ching Kwok-hung (above), after giving credit for her guilty pleas.

17.The sentences imposed on the Applicant were neither wrong, nor manifestly excessive. The Applicant's application for leave to appeal against her sentence is dismissed.

Representation:

Ms Lily Ho May Yu, SGC, Department of Justice, for the HKSAR

The Applicant, Fok Lin Hing, in person