HKSAR v. Wan Chiu Ying

[English Translation – 英譯本]
CACC 521/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 521 OF 1999

(ON APPEAL FROM DCCC NO. 767 OF 1999)

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BETWEEN

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Coram: Hon. Leong and Wong JJA in court

Date of Hearing: 27 January 2000

Date of Judgment: 27 January 2000

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JUDGMENT

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Leong JA (delivering the judgment of the Court):

1. The hearing of this case was conducted in Chinese in the court below.  The judge also wrote his reasons for sentence in Chinese.  As the counsel for the parties at the hearing were neither expatriates nor people who do not speak Chinese, and the Notice of Appeal submitted by the Applicant for leave to appeal, Wan Chiu Ying, was also written in Chinese, the hearing of this appeal was fixed to be conducted in Chinese before this Court in this afternoon.  Accordingly, the written submission by Counsel for the Respondent, the Secretary for Justice, in respect of this appeal was also prepared in Chinese.

2. A few days ago, this Court received an application in writing from Miss Chow, Counsel for the Applicant for leave to appeal, by which she requested that the hearing of this appeal be conducted in English.  However, Miss Chow now indicated to this Court that it was not the case that she was unable to make submissions in Chinese, but when she referred to authorities she might have to read them out in English.  In these circumstances, this Court saw no special reason for allowing Miss Chow’s written application for the hearing of this case to be conducted in a language other than Chinese.  The parties concerned must appreciate that, if the hearing of a case has been fixed to be conducted in Chinese, it must be conducted in Chinese unless there are special reasons for not doing so.  The fact that an appeal is fixed before bilingual judges does not mean that the appeal can be conducted in English.  For the sake of clarity, this Court will notify the officers in charge of fixing dates that, in future, when dates are fixed for cases conducted in Chinese in the court below, it must be specified that the appeals will be heard in Chinese.

3. In R v Lee Shun On and Cheung Chi Yeung (transliteration), this Court, in a judgment delivered on 22 June 1996, clearly stated that, if the hearing of a case is conducted in Chinese, and all documentary exhibits, evidence, statements, notices of application, etc., as well as reasons for conviction and sentence, are written in Chinese, this Court will not draw on substantial manpower, resources and public funds to provide translation service to facilitate counsel who can only speak English in conducting the appeal on behalf of the appellant or applicant.  For this reason, the hearing of this application for leave to appeal was conducted in Chinese.

4. The Applicant, Wan Chiu Ying, pleaded guilty to two charges before the District Court on 6 October 1999.

5. The first charge was keeping a divan.  The particulars of this offence were that, on 17 June 1999, Wan Chiu Ying kept a divan in Hong Kong, where she sold a dangerous drug (namely, heroin hydrochloride) to people for them to consume it there.

6. The second charge was possessing dangerous drugs.  The particulars of the offence were that, on 17 June 1999 and at 2^nd Floor, No. 13 Tak Cheong Lane, Yaumatei, Kowloon, Hong Kong, Wan Chiu Ying possessed dangerous drugs, namely, a mixture of 0.75 gram containing 0.55 gram of heroin hydrochloride and a crystalline solid of 6.171 grams containing 6.072 grams of methamphetamine.

7. The Applicant was sentenced to 2 years’ imprisonment on the first count. She was sentenced to 20 months’ imprisonment on the second count, 12 months of which were ordered to run consecutively with the sentence on the first count. This brought the total term of imprisonment to 3 years. Thirty months of this term were ordered to run consecutively with a 9-month imprisonment term which the Applicant was then serving.  The Applicant now seeks leave to appeal against sentence.

8. The facts admitted by the Applicant are as follows.  On 11 June, 1996, the police conducted a search at the Applicant’s residence on 2^nd Floor, No. 13 Tak Cheong Lane, Yaumatei, Kowloon. They found that the said premises were a divan in which there were ten people and a large quantity of apparatus for consuming drugs, with traces of dangerous drugs thereon.  The police subsequently found, inside the Applicant’s room, the dangerous drugs specified in the second charge, i.e. “ice” and heroin hydrochloride.  The Applicant admitted that she kept the divan, that she was paid $700 per day for managing the divan and selling heroin to people for consumption, and that the dangerous drugs found inside the room were for her own consumption.

9. In August 1999, i.e. two odd months before the sentence in respect of the present offences was imposed on her, the Applicant was sentenced to 9 months’ imprisonment on two counts of possessing dangerous drugs.  She first came into contact with dangerous drugs as early as in 1973.  She had repeatedly committed dangerous drug offences and had been sentenced to the Drug Addiction Treatment Centre on numerous occasions.  Her criminal record shows a series of convictions for dangerous drug offences.

10. On the basis that the nature of the first charge in the present case was the same as that of trafficking in a dangerous drug, the judge followed the sentencing guidelines on trafficking in a dangerous drug of small quantity and adopted a starting point of 3 years.  He gave the Applicant one-third discount for her plea of guilty and arrived at a term of 2 years.

11. As the second charge indicated that the Applicant was in possession of two different types of dangerous drugs at the same time, the judge, following the authorities, adopted a starting point of 30 months.  After giving the Applicant the discount to which she was entitled for her plea of guilty, the judge arrived at a term of 20 months.  In view of the fact that the two offences were different in nature but bearing in mind that the total term of imprisonment might be excessive if the sentences on the two counts were to run consecutively, the judge ordered that part of the sentence on the second count was to run consecutively with the sentence on the first count.

12. The ground of appeal is that the judge, in considering sentence, wrongly treated the offence of keeping a divan as trafficking in a dangerous drug, and therefore the starting point of 3 years in respect of the first count is too high. The starting point of 30 months in respect of the second count is also said to be too high.  The ground of appeal also states that the judge failed to consider the totality principle and therefore the total term of 36 months is manifestly excessive.

13. For the first count, the divan kept by the Applicant was a place where a dangerous drug was supplied and sold to drug addicts for consumption.  The Applicant admitted to managing the divan in which she supplied and sold heroin.  This Court takes the view that the nature and gravity of the offence are no different from trafficking in heroin at the said premises.  The sentencing guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to this type of offences.  The remuneration that the Applicant received for managing the divan was not insubstantial: on the basis of $700 per day, she could earn more than $20,000 per month.  When the police arrived at the scene, there were ten people using the premises.  A large quantity of paraphernalia for consuming dangerous drugs was also found upon search.  This shows that the scale of operation of the divan was not a small one.  The Applicant also admitted to selling a dangerous drug inside the divan.  According to the sentencing guidelines in Lau Tak Ming, for the offence of trafficking in less than 10 grams of a dangerous drug, the starting point should at least be 2 years.  In R v Cheung Wai Ming, Magistracy Appeal No. 204 of 1996, Mr Justice Chan CJHC indicated that the minimum sentence of 2 years in the sentencing guidelines of Lau Tak Ming did not necessarily apply to trafficking in a small quantity of a dangerous drug and took the view that trafficking in a large quantity of a dangerous drug was different from supplying a small packet of a dangerous drug to a friend. However, in a later case, AG v To Ka Yin, Application for Review No. 3 of 1996, the Court of Appeal clearly stated that the starting point for trafficking in a small quantity of a dangerous drug should be 2 years.

14. Although the evidence relating to the first count did not reveal the quantity of the dangerous drug which the Applicant supplied and offered to sell inside the divan, what the Applicant did, in the circumstances of this case, was conduct which did encourage the undesirable activities of drug trafficking and drug consumption, thereby endangering the society.  Therefore, it is reasonable for the judge to take the view that he had to follow the sentencing guidelines as to trafficking in a dangerous drug.  The starting point of 3 years adopted by the judge is by no means excessive; instead the sentence is quite a lenient one.

15. In respect of the second count of possessing dangerous drugs, the judge took the view that the usual sentence for possessing a small quantity of heroin was 9 to 15 months’ imprisonment, whereas for an offender who had a number of previous similar convictions, the starting point might be 12 to 18 months.  Bearing in mind that the Applicant was a keeper of a divan and that the “ice” in her possession posed a higher latent risk, the judge was of the view that the appropriate starting point for 6.0 grams of “ice” was 2 years.  Nevertheless, as only one charge was laid in respect of these two types of dangerous drugs, the judge adopted an overall starting point of 30 months.

16. According to the authorities submitted by the Respondent in relation to possession of “ice”, in HKSAR v Luk Yun Shing, Criminal Appeal No. 357 of 1998, 20 odd grams of “ice” were involved and the starting point adopted was 3 years; in R v Chan Shing Hing, Criminal Appeal No. 725 of 1996, 29.86 grams of “ice” were involved and the starting point adopted was 3 years; in R v Wu Chi Wai, Criminal Appeal No. 680 of 1995 (a case mentioned in Chan Shing Hing), 56.12 grams of “ice” were involved and the starting point adopted was also 3 years, and at that time the Court of Appeal had already considered the quantity and nature of “ice” involved as well as the latent risk factor.  In HKSAR v Lai Kam Sang, Criminal Appeal No. 578 of 1998, 26.61 grams of “ice” were involved and the Court of Appeal was of the view that, although the quantity of “ice” involved presented a latent risk, the sentence should not be doubled.  Nevertheless, the starting point adopted by the Court of Appeal in that case was also 30 months.  Therefore, on the whole, taking into account the quantities of the two types of dangerous drugs involved in the second count, and having regard to the fact that the Applicant was a keeper of the divan and has repeatedly committed dangerous drug offences, as well as the fact that the Applicant would more probably sell the “ice” than consume it herself, the judge cannot be faulted for adopting the starting point of 30 months for the second count.  The total term of sentence for the two counts is not manifestly excessive either.

17. In these circumstances, taking the matter as a whole, although the Applicant has to serve 30 months of imprisonment for these two counts in addition to the 9 months which she is at present serving, the sentences of these two counts are, in this Court’s view, neither manifestly excessive nor wrong in principle.

18. This Court considers that there is no merit at all in this application for leave to appeal against sentence.  The application is therefore dismissed.  We also order that the 3 months during which the Applicant was put in custody are not to be counted as part of the sentence.

Miss Chan Yuet Ho, Assistant Director of Public Prosecutions, for the Respondent

Miss Monica Chu, assigned by the Legal Aid Department, for the Applicant for leave to appeal

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor