R. v. Tsang Kam Ha

CACC000538/1996

IN THE COURT OF APPEAL

1996, No. 538

(Criminal)

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Coram: Hon Nazareth V.-P., Mortimer and Mayo JJ.A. in Court

Date of hearing: 7 March 1997

Date of judgment: 7 March 1997

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. On 8th November 1995 the applicant, Tsang Kam-ha, was intercepted by custom officers at Choi Wan Shopping Arcade in Kowloon. Concealed on her person was found 42.38 grammes of a mixture containing 7.92 grammes of heroin hydrochloride. This was packed in a number of plastic bags.

2. On 12th September 1996 she pleaded guilty to a charge of trafficking in dangerous drugs before Stock J in the High Court. She was convicted on her plea.

3. The judge noted that she was 42 years of age and was to be treated as a person of previous good character although she had a previous conviction in 1989 for trafficking in dangerous drugs. He addressed two matters urged upon him in mitigation. First, that as her husband was also convicted and sentenced to 5½ years, their children aged 16 and 8 years would be deprived of their company and care. The judge observed that there was an aunt to look after them, and that the point came ill from one who peddled drugs whose ultimate consumers are youngsters whose suffering would be considerably worse than that of her children. That point, he said, operated as no mitigation whatsoever.

4. The 2nd matter that was urged upon the judge was the evidence he had before him was that the applicant has heart problems. But he concluded that necessary treatment would no doubt be provided in prison. It has not been suggested to us that this is not so.

5. In her written application for leave, the applicant merely stated as her only ground of appeal that the sentence was too long. Before us today, she has added that she is just a housewife and not a principal offender. She was told by her husband to carry the drugs downstairs and felt she had no choice but to listen. She says that her sister, the children's aunt, is no longer able to look after them because her father has cancer and the sister has to look after him. She has substantiated her claim that her father has cancer with a certificate issued by a doctor at the Princess Margaret Hospital. She also says that her case should have been tried at the Magistracy where she would have got a lighter sentence and she was only sentenced in the High Court because of the offence her husband was charged with. There is nothing in that point. Magistrates do not deal with offences of trafficking in dangerous drugs.

6. She also says she is handicapped and has to receive physiotherapy which is not provided at Tai Lam.

7. The sentence of the judge was perfectly proper. This can be seen from the tariff in R v Lau Tak-ming [1990] 2 HKLR at 370 where up to 10 grammes of narcotics attracts a sentence of 2-5 years imprisonment. 2½ years is almost precisely right in the circumstances giving due discount for the plea of guilty. The propriety of that sentence is in no way affected by the mitigating circumstances which the applicant has sought to urge before us.

8. Peddling in drugs is a serious offence and those who indulge in it should not expect leniency from the courts. We can find no good reason in the matters she urges before us to interfere with the sentence. We refuse her application for leave.

Representation:

Applicant in person

Mr A.A. Bruce QC and Mr Edmond Lee (Crown Prosecutor) for Crown/Respondent