HKSAR v. Lee Yuen Kei

HCMA 967/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 967 OF 2008

(ON APPEAL FROM KTCC 3765/2008)

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing: 18 March 2009

Date of Judgment: 18 March 2009

Date of Handing Down Reasons for Judgment: 31 March 2009

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REASONS FOR JUDGMENT

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1.On 24^th September 2008, the Appellant was sentenced to 18 months imprisonment having pleaded guilty to trafficking in a total of 1.41 grams of methamphetamine hydrochloride (ICE).

2.The Appellant filed notice of appeal against sentence on 3^rd October 2008 and the matter came before myself on 18^th March 2009 when the Appellant was represented by counsel.  After hearing submissions for both sides, I dismissed the appeal against sentence indicating I would hand down by reasons for doing so at a later date.  I now do so.

3.The factual matters leading to the arrest of the Appellant were that on 6^th March 2008 police entered premises at Room 208, 2/F Peony House East Block, 1-7 Pok Man Street, Mongkok where they found the Appellant and three of her friends.  Inside the Appellant’s purse was found:-

(i)  2 plastic bags containing 2.1 grams of herbal cannabis.

(ii)  4 plastic bags containing 0.34 grams of methamphetamine hydrochloride (ICE).

(iii)  1 plastic bag containing 0.02 grams of a powder containing cocaine and

(iv)  3 plastic bags containing 1.07 grams of methamphetamine hydrochloride.

4.The Appellant denied possession and knowledge of the cannabis and cocaine and only admitted trafficking in ICE, i.e. items (ii) and (iv) above.  After arrest and caution, the Appellant said that she bought the drugs to share with her friends.  Despite the fact that the Appellant was found in possession of all of the drugs (i) – (iv), she only pleaded guilty to trafficking in the ICE.  This was accepted by the court below.

5.On 10^th March 2008, amended perfected grounds of appeal against sentence were filed.  They read:-

“Ground 1(a)  The learned magistrate failed to hold a Newton inquiry as to the proportion of the drugs the Appellant took for self-consumption.  The sentence should therefore be quashed and a new sentence should be imposed based on a factual scenario most favourable to the Appellant.

Ground 1(b)  The learned magistrate failed to take into account the important mitigating factor that part of the drugs were for the Appellant’s self consumption.

Ground 2  The learned magistrate failed to give proper and adequate consideration to the clear record of the Appellant.  Appropriate discount was not reflected in the sentence of the Appellant.

Ground 3  The sentence was manifestly excessive.”

6.I will deal with each of these grounds in the order in which they appear.

7.Grounds 1(a) and (b) can be dealt with together.  There is simply no merit to these grounds.  The total amount of ICE that the court was dealing with was only 1.41 grams.  The Appellant herself admitted that she bought the drugs to share with three of her friends.  This was a clear cut case of social trafficking where the amount of ICE that was to be consumed by the Appellant would necessarily have been a small portion of the 1.41 grams that was to have been shared between the Appellant and her three friends.  A Newton inquiry would have been completely unnecessary, the outcome of which would have made no difference to the eventual sentence passed.

8.In addition to the above, the starting point adopted by the learned magistrate was 2 years and 3 months imprisonment, considerably less than the lowest band of 3 years imprisonment in the Sentencing Guidelines laid down in Attorney-General v. Ching Kwok Hung (1991) 2 HKLR 125.  Grounds 1(a) and (b) accordingly fail.

9.As far as ground 2 is concerned this is devoid of any merit.  The fact of a clear record has not been a valid ground of appeal for a considerable period of time.  The one third discount which the learned magistrate in the present case gave, has on numerous occasions been referred to by the Court of Appeal as “the high watermark” unless there are very special factors to be taken into account.  In this case there were none.

10.The sentence of 18 months imprisonment imposed by the learned magistrate was by no means manifestly excessive.  The appeal is dismissed and I confirm the sentence.

Ms Teresa Kam, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr Edwin Choy, instructed by the Legal Aid Department, for the Appellant