HKSAR v. Ngai Ying Cheung

CACC 604/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 604 OF 2002

(ON APPEAL FROM HCCC NO. 306 OF 2002)

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BETWEEN

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Before : Hon Stock JA and Suffiad J in Court

Date of Hearing : 30 November 2005

Date of Judgment : 30 November 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence out of time. 

2.The applicant was one of three defendants who were committed for sentence to the High Court in relation to serious offences of trafficking in dangerous drugs.  The applicant pleaded guilty to trafficking in 2,421.14 grammes of a crystalline solid containing 2,389.98 grammes of methamphetamine hydrochloride.  The second and third accused with whom we are not concerned, also pleaded guilty to trafficking on the same day and the same place – namely, the departure hall of the passenger terminal of Hong Kong International Airport – in similarly massive and separate quantities.

3.The facts were straightforward.  This applicant as well as the others were intercepted at a check-in counter of Continental Airlines and brought back to the police office at the airport for a search.  The first applicant had plastic bags strapped around his thighs and legs and he had in his possession an air ticket for Guam.  The drugs were in the plastic bags.  He admitted that he had these drugs in his possession and said that he had been asked to take them to Guam and that he wanted to make some quick money for a reward of HK$30,000.  He had been told to go to a hotel room in Mongkok with the second defendant and it was there that instructions were given and the drugs tied around his legs and thighs.

4.The matter came before Beeson J on 2 December 2002 for sentence.  The applicant was then aged 21 years with a clear record.  Letters were produced from former employers as well as others who knew the applicant.  The sentencing judge remarked that there were involved in this case very substantial quantities of “ice” and concluded that the first and second applicants had been used as couriers.  She referred to the favourable letters before her about the applicant and to suggestions that he was simple-minded or gullible.  She referred to his early plea and to his mitigation generally.  She took a starting point of twenty one years’ imprisonment and discounted that to a term of fourteen years’ imprisonment on account of his plea of guilty and referred to other mitigation, resulting in a term of thirteen years’ imprisonment.

5.We have now had drawn to our attention matters that have arisen since the sentence and which were alluded to in the course of the sentencing process.  Although we take the view that the starting point adopted by the sentencing judge was low given the quantity of drugs and the international aspect of the offence in question, we think that in the light of the matters which have arisen since sentence, the applicant should have leave to appeal out of time and, accordingly, we grant him leave to appeal out of time and treating the hearing of this application as the appeal, we allow the appeal and set aside the sentence of thirteen years’ imprisonment and substitute a term of eleven years’ imprisonment.

Mr John Marray assigned by Legal Aid Department for Applicant

Ms Mary Sin, SADPP of the Department of Justice for the Respondent