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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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the court) :

1.With the leave of McWalters JA, granted on 11 September 2014, the appellant appeals against the sentences of imprisonment imposed on her on 12 May 2014 by District Court Judge Woodcock, following her pleas of guilty to unlawfully trafficking in 7.61 grammes of cocaine on 18 November 2013, contrary to section 4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and possession of dangerous drugs, namely 0.08 gramme of a powder containing cocaine and a solid containing 0.02 gramme of trifluoromethylphenylpiperazine (“TFMPP”), contrary to section 8(1)(a) and (2) of the same Ordinance (Charge 2).

2.The judge adopted starting points of 4 years’ imprisonment for Charge 1 and 18 months’ imprisonment for Charge 2.  In respect of Charge 1, she sentenced the applicant to 2 years and 8 months’ imprisonment.  In respect of Charge 2, she imposed a term of 12 months’ imprisonment, which she ordered to be served concurrently with the sentence imposed in respect of Charge 1.

The facts

3.The appellant accepted as the factual basis of the pleas of guilty that, having been intercepted by police officers in the evening of 18 November 2013 as she was gaining entry into Flat E, 15^th Floor, East South Building, Nos. 475-481 Hennessy Road, Causeway Bay, a search of her person revealed two keys, one of which she had been using to open the door to the premises, and a re-sealable plastic bag containing 0.08 grammes of a yellow powder containing cocaine and one re-sealable plastic bag containing a pink solid containing 0.02 gramme of TFMPP (Charge 2). 

4.Having gained entry to the premises, using the key found in the possession of the appellant, police officers found in a microwave cooker four re-sealable plastic bags containing 1.87 grammes of cocaine and a powder containing 5.74 grammes of cocaine (Charge 1).  A set of electronic scales and 184 small re-sealable plastic bags were found inside a drawer of a desk.  On top of the desk was a wallet belonging to the appellant, containing $28,500, RMB200, US$120 and 1,000 Columbian Peso.

5.In an interview under caution the appellant admitted that the drugs found in the microwave cooker belonged to her and that she used the electronic scales to measure smaller parcels of drugs, which she placed in the re-sealable plastic bags for sale in amounts of 2 to 2.5 grammes of cocaine on each occasion.  She said that she abused cocaine herself but used the TFMPP to aid her sleep. 

6.The retail value of 7.61 grammes of cocaine was HK$20,617. 

Reasons for Sentence

7.In her Reasons for Sentence, having noted that the appellant came to Hong Kong in 2011 and had claimed asylum in March 2012, the judge said that the appellant had no criminal record in Hong Kong.  On the other hand, the judge said that the appellant accepted that she was a drug addict and had been addicted for many years.  In that context, the judge noted that in an antecedent statement the appellant had admitted to being addicted to ketamine.

8.Of the nature of TFMPP the judge said that she had received a report from a doctor from which she concluded that it appears to be similar to Ecstasy.  In respect of the appellant’s claimed use of the substance, the judge noted that it was not a tranquilliser or used for insomnia.

Starting point for sentence

Charge 1

9.Having said that the guidelines for sentencing for unlawful trafficking in cocaine were those set out for heroin in the judgment of this Court in R v Lau Tak Ming [1], the judge noted that in respect of the band of  up to 10 grammes the appropriate range of sentence was between 2 and 5 years’ imprisonment and said that “Mathematically speaking, 7½ grammes of cocaine should attract a starting point of 4 years and 3 months”.  Nevertheless, having regard to her determination that there were no aggravating features in the commission of the offence the judge stipulated a starting point for sentence in respect of Charge 1 of 4 years’ imprisonment.

Charge 2

10.In respect of Charge 2, the judge said that “to reflect the fact that there were two types of drugs” of which the appellant was possessed, albeit in “very small quantities” she took a starting point for sentence of 18 months’ imprisonment.

Discount

11.Affording the appellant a discount of sentence of one-third from that taken as the starting points for sentence, the judge sentenced the appellant to 2 years and 8 months’ imprisonment in respect of Charge 1 and 12 months’ imprisonment in respect of Charge 2.

Grounds of appeal against sentence

12.In the grounds of appeal against sentence advanced on behalf of the appellant, Mr Hanif Mughal submitted that the judge erred in stipulating a starting point for sentence of 18 months’ imprisonment for Charge 2.  Given the very small quantities of the dangerous drugs and the fact that the judge stipulated a starting point for sentence at the top end of the range of sentence appropriate for possession of dangerous drugs, it was clear that she regarded the possession of two types of dangerous drugs as an aggravating factor in the commission of the offence.  That was in error.

13.Next, it was submitted that having regard to the comparatively small quantities of drugs involved in Charge 2, the starting point adopted by the judge was too severe and the sentence imposed was manifestly excessive.

14.Finally, complaint was made that the overall sentence of 2 years and 8 months’ imprisonment imposed on the appellant was excessive.

A consideration of the submissions

Charge 2

15.In considering the appropriateness of the starting point taken by the judge in respect of Charge 2, it is to be remembered that the quantities of dangerous drugs concerned are minute, namely 0.08 grammes of a solid containing cocaine and 0.02 grammes of TFMPP.

16.The doctor’s report to which the judge referred was a report prepared by Dr Dong Yuet Sun, Jimmy dated 2 April 2014.  He described himself as a specialist in psychiatry.  He compiled the report at the request of the prosecution.  He said that TFMPP caused “psychotropic effects similar to that of empathogens such as MDMA and entheogens”.  However, whilst its possession and use had been made illegal in New Zealand in 2008, he noted that in 2004 the United States Drug Enforcement Administration had removed it from its emergency controlled substance scheduling in the absence of scientific evidence to support that listing.  He said there was little information available about the pattern of its consumption, addictiveness and dependency.  There were no statistics available locally.

17.In the judgment of this Court in HKSAR v Mok Cho Tik,[2] Stock JA, as Stock NPJ was then, the appropriate starting point for sentence for unlawful possession of dangerous drugs was addressed :

“ We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie.”

18.In HKSAR v Lacroix[3] McMahon J, in dismissing an appeal against a sentence of 4 months’ imprisonment, suspended for 2 years, together with a fine of $2,000, for unlawful possession of 1.57 grammes of cocaine had regard to the judgment in HKSAR v Mok Cho Tik, describing the 1.57 grammes of cocaine as a “relatively small amount of drug”.  He went on to note that there were a number of cases “which have adopted the starting point for the possession of small amounts of hard drug at the lower end of the range referred to in Mok Cho Tik ”.  One of those cases was HKSAR v Cheung Hoi Lan [4] in which, whilst dismissing an appeal against his sentence of 6 months’ imprisonment imposed after a plea of guilty for possession of 0.09 grammes of heroin, Beeson J described the sentence as “a proper sentence”.

19.It is clear from the Reasons for Sentence, not surprisingly, that the judge did not take into account in sentencing for Charge 2 the “latent risk” factor of onward distribution of the dangerous drugs.  It follows that the judge was concerned only with self-consumption.  In that context, the mere fact of possession of two different types of dangerous drugs is not an aggravating factor in the commission of the offence.  By contrast, in unlawful trafficking of a number of different dangerous drugs that may be an aggravating factor in the commission of the offence.[5]

20.In all the circumstances, we are satisfied that the judge fell into error in stipulating a starting point for sentence of 18 months’ imprisonment for Charge 2.  In our judgment, the appropriate starting point for sentence is 9 months’ imprisonment.

21.Although Mr Mughal took no direct issue with the sentence of 2 years and 8 months’ imprisonment imposed in respect of Charge 1, nevertheless he submitted that the “overall sentence” was excessive.  It is to be remembered that the judge had ordered the sentences be served concurrently.  In that context, he contended that success in the argument in respect of the sentence imposed in respect of Charge 2 was rendered “effectively futile, academic or otiose” and that in consequence the “overall final sentence ought to be reduced”.  Clearly, the only way in which that could be achieved would be by a reduction in the sentence imposed in respect of Charge 1.

22.Mr Mughal was correct not to challenge directly the sentence imposed in respect of Charge 1.  As the judge noted an arithmetic calculation of the appropriate sentence, having regard to the weight of the cocaine, namely 7.5 grammes, and the guidelines, produced a starting point for sentence of 4 years and 3 months’ imprisonment, rather than the 4 years’ imprisonment at the judge stipulated in the event.  That was a matter that lay squarely within the judge’s discretion.  We are satisfied that the sentence imposed in respect of Charge 1 was entirely appropriate.  In those circumstances, there is no basis whatsoever to interfere with that sentence and certainly not for the reasons advanced by Mr Mughal.

Conclusion

23.In the result, we allow the appeal and quash the sentence of 12 months’ imprisonment imposed in respect of Charge 2.  In its place we impose a sentence of 6 months’ imprisonment.  We make no other order.  Accordingly, the total sentence of imprisonment imposed upon the appellant remains the same, namely 2 years and 8 months.

Ms Jasmine Ching, SPP of the Department of Justice, for the respondent

Mr Hanif Mohamed Mughal, instructed by Wong Fung & Co., assigned by Director of Legal Aid, for the appellant

[1] R v Lau Tak Ming[1992] HKLR 370.

[2] HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267 B-D.

[3] HKSAR v Lacroix [2010]2 HKC 327 at 330 C-D, paragraph 7.

[4] HKSAR v Cheung Hoi Lan (HCMA 93/2003; unreported, 5 March 2003).

[5] HKSAR v Yim Hung Lui, Ricky (CACC 266/2011; unreported, 13 February 2012) that paragraph 11:

“  the presence of more than one type of drug in drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”