HKSAR v. Lai Hoi Yan

CAC C 367/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2011

(ON APPEAL FROM HCCC NO. 231 OF 2011)

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BETWEEN

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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.On 24 June 2011 the applicant pleaded guilty to two charges of trafficking in dangerous drugs and the case was transferred to the Court of First Instance for sentence. There she appeared on 26 August 2011 before Deputy High Court Judge Stuart-Moore where her pleas were confirmed and she was sentenced to a total of 14 years’ imprisonment. She now seeks leave to appeal sentence.

2.The charges were:

(1)  that on 18 November 2010 outside premises in To Kwa Wan Road she unlawfully trafficked in 15.39 grammes of a mixture containing 12.17 grammes of heroin hydrochloride; and

(2)  that on the same day, but inside the premises, she unlawfully trafficked in 974.2 grammes of mixture containing 815.33 grammes of heroin hydrochloride.

3.The facts are accurately summarised in the judge’s sentencing remarks:

“The defendant was intercepted on the staircase outside her flat in To Kwa Wan Road on 18 November 2010, when she was found in possession of three resealable bags containing 90 pellets, the narcotic content of which, on later analysis, was found to be 12.17 grammes of heroin hydrochloride. She admitted immediately that she was delivering the heroin to others for profit.

The police then used the defendant’s keys to enter her flat. Heroin hydrochloride was found in several places. The total narcotic content from a mixture weighing 974.2 grammes was 815.33 grammes. The defendant admitted that she had purchased and packaged the heroin herself. The value of these drugs was, all told, $743,182.

Numerous resealable bags and an electronic balance were found in the flat, together with a bag containing over 270 grammes of caffeine.  There was other paraphernalia connected with the packaging, dilution and distribution of dangerous drugs.”

4.Having referred to The Queen v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 the judge took a starting point of five years’ imprisonment for the first offence and, given the fact of the applicant’s plea, imposed a sentence on that charge of three years four months’ imprisonment; and he took a starting point in relation to the second offence of 21 years’ imprisonment and imposed a sentence of 14 years’ imprisonment.  He ordered the two sentences to run concurrently, making a total of 14 years’ imprisonment.

5.In support of her application, the applicant has today referred us to another case in which according to her, a defendant convicted of trafficking in a slightly larger amount received, she says, a lesser sentence.  There is no need for us to look for that case for on the facts of this case the sentence was entirely appropriate.  She has also drawn to our attention her personal circumstances, including a history of a difficult background and upbringing; but these are sometimes features of cases in this category of offence but, as is well-known, they count for little in offences of this kind in respect of which this Court takes a strict approach.  There is no merit in this application and it is accordingly dismissed.

Mr Alain Sham, DDPP of the Department of Justice, for the Respondent

The Applicant in person, present