HKSAR v. Chow Yim Sheung

CACC 137/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 137 OF 2013

(ON APPEAL FROM HCCC NO. 79 OF 2013)

________________________

BETWEEN

________________________

________________________

________________________

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

1.This is an application for leave to appeal against the sentence of five years four months’ imprisonment for trafficking in dangerous drugs.

2.On 7 September 2012 the applicant and her cohabitee (D1) were intercepted at Lok Ma Chau control point when they were entering Hong Kong from the Mainland.  When searched, no drugs were found in their possession though a scan indicated the presence of drugs.  They were taken to hospital and drugs were concealed within their body cavities.

3.D1 had three pellets which housed a mixture containing 50.29 g of heroin hydrochloride; the applicant two pellets housing a mixture containing 32.09 g of heroin hydrochloride.

4.When interviewed, the applicant admitted carrying drugs, and said that she was carrying them for D1 but that she had no knowledge of the drugs which he carried.

5.This resulted in two counts on the indictment: the first against D1 of trafficking in the drugs in the possession of himself and of the applicant (86.38 grams of heroin) and the second against the applicant of trafficking in the drugs in her possession (32.09 grams of heroin).  Both defendants pleaded guilty before the magistrate and the matter was transferred to the Court of First Instance for sentence.

6.Deputy Judge Wright sentenced the applicant and D1 on 19 April 2013.

7.In the case of D1, the judge noted that the quantity trafficked by him warranted a starting point of 8 years 9 months’ imprisonment; he enhanced that by six months because D1 had seven previous drug-related convictions (two of which were for offences of trafficking in dangerous drugs); and he added one year for the aggravating feature that there was an international element.  That resulted in 10 years three months’ imprisonment before deduction of the standard one-third discount for his plea of guilty resulting, in his case, in a period of 6 years 10 months’ imprisonment.

8.In the case of the applicant, the judge took a starting point warranted by the quantity of drugs in her possession, of 6 years 6 months’ imprisonment; aggravated that by six months because of her previous drug-related offences; and by a further one year to take into account the international element, resulting in an aggravated sentence totalling eight years’ imprisonment and reduced that by one-third to reach the sentence in fact imposed, 5 years 4 months’ imprisonment.

9.No issue is taken on the applicant’s behalf in relation to the starting point of 6 years 6 months’ imprisonment adopted by the judge.

10.The first ground of complaint is that the judge ought not to have treated the applicant as a persistent drug offender so as to warrant an aggravation of the starting point by six months or at all.

11.The applicant was aged 33 years at the date of the offence and had a long stream of previous drug-related convictions, although mostly for possession of dangerous drugs.  She had two convictions for trafficking in dangerous drugs, one in 2001 for which she was sentenced to 16 months imprisonment and the other in 2005 for which, again, she was sentenced to 16 months imprisonment.  Her latest drug-related offence, that of possession of dangerous drugs, was in 2009.

12.Although there was some considerable lapse of time since the last trafficking offence, and the two previous trafficking offences were dealt with in the magistrate’s court, the offences show a pattern of convictions for possession of dangerous drugs interspersed with an occasional offence of trafficking.  In those circumstances, aggravation of the sentence in the hope of injecting a meaningful deterrent element cannot be said to have been outwith the permissible range of discretion accorded to the sentencing judge.

13.Similarly, the aggravation for cross border trafficking is within a permissible range and whilst some might not have aggravated the starting point by as much as 18 months on account of the two aggravating features, we cannot say that to do so was manifestly excessive. 

14.Then it is said that the judge failed to give sufficient recognition to the subsidiary role played by the applicant who, it is said upon this application, acted under the domination or influence of D1.  She said that she had thought when the drugs were given to her by D1 to carry, that that was because he had conspicuous body tattoos and did not wish to carry the drugs himself; she not knowing that he also was carrying drugs.

15.We do not think that there is much in this point.  We note that no suggestion was made in mitigation that she was under the domination of D1 and her history of drug consumption and drug trafficking suggests that there is nothing exceptional to warrant an assumption that she played an unwilling role.

16.Finally it is said that the judge failed to give credit for the (suggested) fact that the drugs imported by the applicant were for the self consumption of the applicant and D1.

17.If the drugs were indeed imported purely for self consumption, that would be a factor of assistance to the applicant; but the problem is that the judge indicated that he did not believe the mitigation.  It was conceded by D1 in his mitigation that he was carrying the drugs for reward (not a concession, of course, that bound the applicant) but it was said on her behalf that the amount she was carrying was the amount normally consumed by her and D1 in the course of one week; in other words, 16 grams of heroin in a week.  The judge said, as to that: “That is 2½ grams a day. She’d be dead by now.” By so saying, it was clear that the judge did not accept the mitigation and had counsel on her behalf wished to pursue the matter, she could have done so and asked for permission to call her client to testify.

18.Ms Chan, for the applicant, accepts that what she told the judge accorded with her instructions from the applicant and there was no suggestion then to the judge that despite the judge’s indication of disbelief that all were intended for self-consumption, the judge should assume that part was intended for self consumption.  Given that the judge was justified in rejecting the account advanced on behalf of the applicant, there was no adequate evidential basis for assuming that part was for self-consumption

19.In the circumstances, the application is dismissed.

Ms Irene Fan, SPP of Department of Justice, for the Respondent

Ms Terry Chan, instructed by Bar Free Legal Service Scheme, for the Applicant