HKSAR v. Suen Wing Lam

CAC C 49/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 49 OF 2011

(ON APPEAL FROM HCCC NO. 354 OF 2010)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Kwan JA in Court

Date of Hearing: 21 October 2011

Date of Judgment: 21 October 2011

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J U D G M E N T

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

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

2.The applicant pleaded guilty before Line J in the Court of First Instance on 10 January 2011 to three of four counts upon an indictment:

Count 1: that on 29 April 2010 outside premises in Waterloo Road, Kowloon City, she had in her possession dangerous drugs, namely, 0.54 grammes of a crystalline solid containing 0.52 grammes of methamphetamine hydrochloride;

Count 2: that on the same day inside a flat of which she was the sole tenant on the first floor at 116 Waterloo Road she had in her possession a dangerous drug, namely 2.44 grammes of crystalline solid containing 2.34 grammes of methamphetamine hydrochloride – the count alleged trafficking in the amount but her plea of guilty to simple possession was accepted; and

Count 4: that on a date between 1 November 2009 and 1 April 2010, being the tenant of those premises on the first floor, she permitted or suffered the premises to be used by one someone called Soh Keung for the storage of a dangerous drug, namely, methamphetamine hydrochloride.

3.The matter was brought in the Court of First Instance because Count 3 was a count which alleged trafficking in 27.27 grammes of a crystalline solid containing 25.58 grammes of methamphetamine hydrochloride, a quantity found in a large bag in the same premises.

4.Count 4 was an alternative to Count 3 and the plea to the alternative lesser offence embodied by Count 4 was accepted by the prosecution.

5.On the day following the plea, the judge heard mitigation and ordered the preparation of a Drug Addiction Treatment Centre suitability report, not because he was minded to send the applicant to such a centre for treatment but because he was of the view that a report from such a centre would be helpful in the sentencing exercises.

6.On 25 January 2011 he sentenced her as follows:

(1) In relation to Count 1, he took a starting point of 15 months’ imprisonment and, in the light of the plea of guilty, he sentenced her to a term of 10 months’ imprisonment;

(2) in relation to Count 2, he again took a starting point of 15 months’ imprisonment and sentenced her to 10 months’ imprisonment;

(3) He ordered those two sentences to run concurrently.

(4) In relation to Count 4, he did not specify a starting point – though given the manner in which matters proceeded, we can take it that he adopted a starting point of three years nine months’ imprisonment, and sentenced her to a term of two years six months’ imprisonment.

(5) He then ordered six months of the terms imposed in relation to Counts 1 and 2 to run consecutively to, the remainder concurrently with, the term imposed on Count 4; resulting in a total sentence, for the three offences, of three years’ imprisonment.

7.There is a single ground of appeal advanced with clarity by Mr Cheng on the applicant’s behalf, which is that the starting point in relation to Count 4 was manifestly excessive.

8.The facts may conveniently be taken from the judge’s remarks when he sentenced the applicant:

“You are a 26-year-old lady who has been addicted to “Ice” for some time. In April last year you were stopped, having left your home. You were carrying 0.52 grammes of methamphetamine hydrochloride. You were leaving home to go elsewhere, where you were going to [consume] the drug for yourself ....

You were taken back to your home and further “Ice” was found there.  There were two identifiable quantities of it, one being 2.34 grammes, which is the subject of Count 2 and the other being 25.58 grammes, which is the subject of Count 3.  You maintained to the police that the amount in Count 2, the smaller amount, was for your own consumption and you said to them that the larger amount had been left by someone else in your premises.  You denied trafficking in it.

….

This is not the first time you have been before the court for drugs.  You have been to DATC.

….

What you explained to the police about the larger amount at your premises can be summarised in this way: that you had a boyfriend who was also a drug addict; you both took “Ice”; he was sent to DATC.  You are not a woman who had your own job or your own work.  He continued to look after you and he arranged for someone to supply you with “Ice”.

That is the person you said came to your flat and left the larger amount, and you described how that had been going on since November the year before – he coming to your premises, supplying you.  Occasionally, you would take “Ice” there together.  He would leave drugs and sometimes he would divide the drugs up and repackage them there.

You told the police and I am minded to accept, that you asked him not to but he continued nonetheless.  And of course I take the point made by your counsel that to turn him in would have turned off your supply.”

9.It was also part of the facts put before the court below and to which the applicant agreed, that she was the sole tenant of the flat and that she had given Soh Keung keys to it; that she had known him for approximately four months and that on earlier occasions he had left bags of dangerous drugs at the flat and she had seen him weigh the drugs on the electronic scale found there and divided the drug and put it into small plastic bags which he would then take out to give or sell to other people.  She herself had put some plastic bags away in a box to keep the place tidy.  From time to time he gave her drugs and he also gave her money which he had won in gambling.

10.She admitted also that she was the person who had written on a piece of paper, at Soh Keung’s request, the amount and cost of certain drugs to be supplied to a particular buyer.

11.The judge correctly pointed out that there was no particular tariff or guideline for the offence in question and that the facts of such cases varied enormously.  He took the view, in accordance with submissions made to him by counsel, that the offence in this case was “about half a serious as if you had been trafficking in the ice and I think that to be a reasonable approach in the circumstances of this case.” (emphasis added).  “Accordingly,” he said, “on Count 4, I shall impose a sentence of half of what it would have been if it had been trafficking and that is a sentence of two years and six months.”

12.At the date of the offences, the applicant was aged 25 years and had a record of previous criminal convictions: in December 2007 she was convicted of possession of equipment fit and intended for consumption of dangerous drugs; in May that year of the offence of making off without payment; and in August of the same year of an offence of possession of dangerous drugs.

13.The submission advanced by Mr Cheng on behalf of the applicant places reliance on the decision of this Court, differently constituted, in HKSAR v Ho Wing To and Leung Mei Yee CACC 264/2010, 28 July 2011, unreported, in which the Court substituted a sentence of two years’ imprisonment after plea in place of a sentence of two years and eight months’ imprisonment which had been imposed by the sentencing judge.  Mr Cheng recognises realistically that the facts were different but nonetheless says that the appropriate starting point in this particular case should have been one of three years’ imprisonment.

14.In that case, the Court pointed out that the offence varied considerably in its gravity and that the extent of the involvement of an accused person together with the amount of financial benefits, if any, were significant considerations.  The applicant in that case was the friend of the mother of a 16-year-old whom she had agreed to take in as a lodger because of family difficulties confronted by him and his family.  She knew that he was storing drugs but she was placed in a particularly invidious position in terms of reporting him and received no reward or benefit from turning a blind eye to his activities.  Moreover the drugs had been placed in the applicant’s premises only shortly before her arrest.  The comparison between that case and this does not in the event assist this applicant.

15.In this case, the man Soh Keung had been using the applicant’s flat for several months from which to conduct a drug trafficking operation and this was to her knowledge.  She had received benefit from permitting him to store drugs there, namely, the provision of drugs for her own consumption as well as some monetary benefit.

16.It is, in our judgment, not possible justifiably to say in this case that the sentence imposed on Count 4 was manifestly excessive and, accordingly, the application is dismissed.

17.We have earlier in this judgment referred to the judge’s approach by which he assessed the seriousness of the offence as half that had the applicant been trafficking in the same amount and in this regard we emphasised the phrase used by the judge “in the circumstances of this case”.  We made that emphasis because we would not wish it thought that that approach provides some general guideline to sentencing for this category of offence.  This category of offence must be acutely sensitive to the facts of each case.

Ms Agnes Chan, ADPP (Ag.) of Department of Justice, for the Respondent

Mr Francis Cheng, instructed by Messrs Lim & Lok, assigned by Director of Legal Aid, for the Applicant