HKSAR v. Ramirez Beltran Claudia Lorena

CACC 180/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2014

(ON APPEAL FROM DCCC NO. 41 OF 2014)

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J U D G M E N T

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Introduction

1.The applicant appeared in the District Court before District Judge Woodcock (“the judge”) on 12 May 2014 and pleaded guilty to offences of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the same Ordinance.  Both offences occurred on the same day and in the same building.

2.The trafficking charge alleged that the applicant was in possession of 5.40 grammes of a solid containing 1.87 grammes of cocaine and 11.73 grammes of a powder containing 5.74 grammes of cocaine at a flat she occupied at Room D, Flat E, 15^th Floor, East South Building, Nos. 475‑481 Hennessy Road, Causeway Bay.  The possession of dangerous drugs charge alleged that on the same day at the lift lobby of the same building, the applicant had in her possession 0.08 gramme of a powder containing cocaine and 0.12 gramme of a solid containing 0.02 gramme of trifluoromethylphenylpiperazine (“TFMPP”).

3.On the day that she appeared before the judge the applicant was sentenced to 2 years and 8 months’ imprisonment for the first charge and 1 year’s imprisonment for the second charge.  The judge ordered both sentences to be served concurrently.  The applicant now applies for leave to appeal against these sentences.

The Background to the Offence

4.At around 8.43 p.m. on 18 November 2013 police officers observed the applicant walking furtively to Flat E, 15^th Floor, East South Building, Nos. 475-481 Hennessy Road, Causeway Bay and opening the metal gate to that flat.  They intercepted her and revealed their police identity.  Upon searching her person two keys were found on her.  In her right front skirt pocket there were one resealable plastic bag containing 0.08 gramme of a yellow powder containing cocaine and one resealable plastic bag containing 0.12 gramme of a pink solid containing 0.02 gramme of TFMPP.  The applicant was thereupon arrested.

5.The police party then executed a search warrant against the applicant’s room, using one of the keys seized from her to open the front door of the premises.  Inside the premises the police found the following items:

(i) two resealable plastic bags containing 1.46 grammes of a yellow powder containing 0.39 gramme of cocaine;

(ii) one resealable plastic bag containing 5.40 grammes of a yellow solid containing 1.87 grammes of cocaine;

(iii) one resealable plastic bag containing 10.27 grammes of a yellow powder containing 5.35 grammes of cocaine;

(iv) one resealable plastic bag containing 28.89 grammes of white powder which did not contain any substances controlled under Dangerous Drugs Ordinance; and

(v) three metal spoons.

6.Inside the desk drawer in the premises the police found one working and one defective electronic scales, a total of 184 small resealable plastic bags and a tenancy agreement for the premises.  On the desk there was a wallet belonging to the applicant, containing $28,500 cash, RMB200 cash, US$120 cash and 1,000 Columbian Peso cash.

7.In the subsequent interview conducted under caution, the applicant stated that she was a consumer of cocaine and she used the TFMPP to aid her sleep.  She also said that she was aware of the dangerous drugs concealed in the microwave and that those drugs belonged to her.  She said she would use the electronic scales to weigh these drugs and then package them into the smaller resealable bags for easier carriage to parties.  She said she would usually bring 2.00 to 2.50 grammes of cocaine to parties on each occasion.

8.The total quantity of dangerous drugs in the applicant’s possession was 17.13 grammes of a powder and solid containing 7.61 grammes of cocaine.  The street value of these drugs was around HK$20,617.  Additionally, the applicant was in possession of 0.08 gramme of a powder containing cocaine and 0.12 gramme of a solid containing 0.02 gramme of TFMPP.

The Reasons for Sentence

9.In her Reasons for Sentence the judge referred to the facts that had been admitted by the applicant and also said that she had been presented with a report from a doctor explaining what TFMPP is and what it does.  She said it seems that it was a drug similar to Ecstasy and that it is not a tranquilliser or used for insomnia.

10.The judge was told that the applicant comes from Colombia and had arrived in Hong Kong in 2011.  She applied for asylum in Hong Kong in March 2012 and has a clear record here.  The judge had received a letter written by the applicant in which she expressed remorse and set out details of her family background, her personal background and why she came to Hong Kong.  The judge noted that if what the applicant had said in her letter was all true, then she had had a tragic upbringing.  In the letter the applicant admitted that she had been using drugs since she was a young teenager and she is now 30 years of age.  She said she had tried to receive treatment and a certificate mailed to Hong Kong from Colombia from a drug rehabilitation centre was tendered to the judge.  This certificate apparently revealed that the applicant was receiving treatment for just over 4 months in early 2011.  This letter further revealed that whenever the applicant suffered setbacks in her life, she would turn to drugs.

11.The judge also noted that in her antecedent statement the applicant confirmed that she was addicted to ketamine.

12.The judge then referred to the guidelines for sentencing for cocaine trafficking.  These are the guidelines set out in R v Lau Tak Ming [1992] HKLR 370.  He noted that in that judgment the Court of Appeal said that where between 0 to 10 grammes of narcotic is trafficked the appropriate starting point is between 2 to 5 years’ imprisonment.  The judge then went on to note that “Mathematically speaking, 7½ grammes of cocaine should attract a starting point of 4 years and 3 months”.

13.The judge noted that once the starting point had been determined the presence of mitigating or aggravating factors can either lower or add to that starting point and she noted that there were no aggravating factors present in respect of the applicant.  The judge then indicated that she took a starting point of 4 years’ imprisonment for Charge 1 which she then discounted by one-third to allow for the applicant’s guilty plea.  After this reduction the sentence for Charge 1 became 2 years and 8 months’ imprisonment.

14.For Charge 2 the judge adopted a starting point of 18 months’ imprisonment which she said was “to reflect the fact there were two types of drugs, albeit very small quantities in Charge 2”.  After the one-third discount the sentence for Charge 2 became 1 year’s imprisonment.

15.The judge ordered that both sentences were to be served concurrently.

The Grounds of Appeal

16.In her Form XI the applicant said nothing other than that she would like to appeal against her sentences. However, in her submissions to me today she said that the 18 months starting point was too high for the second charge and that I should take into account all that she had said in relation to her plea of guilty to the second charge.  This plea she said she tendered notwithstanding that the police would have had difficulty in proving it.  She tendered her plea for the second charge she says as an indication of her remorse.

Discussion

17.There is no merit in the applicant’s complaint in respect of Charge 1.  In respect of Charge 2 the applicant has an arguable case that on a charge of simple possession there is no justification for regarding the fact that the offender addict is in possession of more than one type of drug as a matter that aggravates the seriousness of the offence.  Also, given the small amounts of drugs involved the applicant has an arguable case that the starting point adopted and the final sentence are manifestly excessive.

18.In view of the provisions of section 83I the sentences for both offences will be before the Court of Appeal.  I, therefore, grant the applicant leave to appeal but inform her that even if she is successful in respect of the sentence for Charge 2, her appeal may still not affect the overall length of her sentence.

Conclusion

19.For these reasons the applicant’s application for leave to appeal against her sentences is granted.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person