HKSAR v. Louie Shuk Chun

CACC459/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 459 OF 2006

(ON APPEAL FROM HCCC 149 OF 2006)

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BETWEEN

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Before : Hon Stock JA and Burrell J in Court

Date of Hearing : 20 April 2007

Date of Judgment : 20 April 2007

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court) :

1.On 6 November 2006, the applicant pleaded guilty before Madam Justice Beeson to two drug related offences.  The first was for being in possession of 0.58 gramme of a mixture containing 0.50 gramme of heroin hydrochloride.  The second was for unlawfully trafficking in 78.16 grammes of a mixture which contained 27.75 grammes of heroin hydrochloride and 26.32 grammes of methamphetamine hydrochloride, better known as “ice”.

2.For the first count the judge took a starting point of 3 years’ imprisonment and for the second count 8 years’ imprisonment.  These sentences were discounted to 2 years and 5 years and 4 months respectively because of her pleas of guilty and other mitigation.  They were ordered to run concurrently.

3.The applicant now seeks leave to appeal these sentences.  She was legally represented at First Instance but appears in person before this court.

4.The applicant had brought the drugs, the subject matter of Count 2, into Hong Kong from Shenzhen for a fee of $1,000.  In part, they had been concealed in condoms inside her vagina.  The judge was made fully aware of all her unfortunate personal circumstances and took them into account when sentencing.  The judge rightly noted however that the applicant’s immediate admission of guilt was the only meaningful mitigation in a case such as this.

5.As far as Count 2 is concerned, she rightly considered the guideline cases of R v. Lau Tak Ming [1990] 2 HKLR 370 and AG v. Ching Kwok Hung [1991] 2 HKLR 125 and determined that 8 years was the appropriate starting point in all the circumstances.  From this the usual discount of one third was allowed for her plea of guilty, resulting in a correct sentence on Count 2 of 5 years and 4 months.  There can be no possible complaint about the sentence on Count 2.

6.This sentence was ordered to run concurrently with the sentence on Count 1.  This was also correct because of the nexus between the two offences.

7.We think however that the sentence passed on Count 1 was excessively high.  It was accepted that the 0.58 gramme of the mixture containing the 0.5 gramme of heroin was for the applicant’s own consumption.  Had she been trafficking that amount, the band of sentencing would have been 2 to 5 years after trial.  It seems therefore that the sentence passed on her was more appropriate for an offence of trafficking in that amount rather than of simple possession.

8.We acknowledge that heavy sentences may be passed for offences of simple possession.  For example, 3 years’ imprisonment was upheld by this court in the case of AG v. Chan Ching Ho, CAAR9/1993, after conviction for simple possession of 62.81 grammes of heroin.  However, the very small quantity in the present case cannot be overlooked.

9.Bearing in mind it is a sentence to be served concurrently with a significantly longer sentence, we think that the proper starting point should have been 12 months which should have been reduced to 8 months because of her plea of guilty.

10.To this extent therefore we allow the appeal.  We grant the application for leave, treat this hearing as the appeal and reduce the sentence on Count 1 to 8 months’ imprisonment.  The overall time to be served, however, remains the same.

Mr Simon Tam, SGC of the Department of Justice, for the Respondent

The Applicant in person