HKSAR v. Law Num Chun

CAC C 360/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2013

(ON APPEAL FROM DCCC NO. 635 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

1.The applicant was convicted in the District Court of trafficking in dangerous drugs and sentenced to 59 months’ imprisonment. She now seeks leave to appeal sentence.

2.The document which she has filed says that she seeks leave to appeal conviction as well but since she pleaded guilty and has told this Court that she did not intend to apply for leave in relation to conviction, the application for leave to appeal against conviction is refused.

3.In relation to sentence I grant leave since I think it appropriate for the full court to consider a number of matters:

(1)   The starting point is arguably too high for the combination of drugs, given as well

(2)   that the approach taken by the judge is entirely mathematical apparently not taking into account the fact that the applicant was aged 33 years at the time of the offence without previous convictions of any kind, a factor which ought to be taken into consideration in deciding where within the tariff band the appropriate starting point should lie.  It has in this regard been the practice to impose sentences which are purely mathematical in the sense that they are strictly dictated by quantity, yet without regard to the important caveat in the 1990 decision of Lau Tak Ming that “within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of the dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf.”  The question of appropriate application of this dictum is long overdue for consideration.

(3)   Of some concern is that the fact that judge at para 13 of his sentencing remarks said that “the presence of more than one type of drug in trafficking activities is an aggravating fact as the trafficker can cater for a wider market.”  It is not clear whether he applied that suggested principle in the exercise which he carried out;

(4)   It is appropriate for the court to consider whether it was in the circumstances appropriate for the judge to make a deduction on account of the Newton inquiry given that the judge accepted that some of the drugs – albeit not as much as the applicant was contending – were for self-consumption.

4.For these reasons leave to appeal against sentence is granted. 

5.I make two further orders:

(1)   that the applicant be granted legal aid for the appeal; and

(2)   that a transcript be included in the appeal bundle of the full proceedings in the court below including evidence in the Newton inquiry.

6.I direct that the matter now be set down for hearing with 1 hour reserved; that the perfected grounds of appeal be filed within 21 days of today; that written submissions on behalf of the applicant be filed no later than 28 days before the hearing and that written submissions from the respondent be filed no later than 14 days before the hearing.

Miss Winnie Mok, SPP(Ag.), of the Department of Justice, for the Respondent

Applicant – acting in person