HKSAR v. Cheng Hoi Nam

CACC 323/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 323 OF 2014

(ON APPEAL FROM HCCC 569 OF 2013)

------------------------

------------------------

------------------------

J U D G M E N T

------------------------

Introduction

1.The applicant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and 3 of the Dangerous Drugs Ordinance, Cap 134.  The Particulars of Offence alleged that on 15 August 2013 at Wo Ping House, Lei Cheng Uk Estate, Cheung Sha Wan, Kowloon.  The applicant unlawfully trafficked in 0.40 kilogramme of a powder containing 0.31 kilogramme of ketamine. 

2.On 18 September 2014 the applicant appeared before Deputy High Court Judge Tallentire (“the judge”) and pleaded guilty to this offence.  She was sentenced the same day to 6 years’ imprisonment and she now applies for leave to appeal against that sentence.

The background to the offence

3.Whilst in the lobby of the 11^th floor of Wo Ping House, Lei Cheng Uk Estate, Cheung Sha Wan the applicant was observed placing an item, white in colour, into a leopard print backpack before proceeding to enter the lift.  She was intercepted by police officers and the backpack was searched. Inside the backpack the police found the drugs particularized in the charge contained within 30 transparent resealable plastic bags.  All of these plastic bags were themselves contained in a larger white plastic bag. 

4.In a video recorded interview the applicant admitted to having been approached by a man who offered to pay her $2,000 to deliver the ketamine to another person.  She agreed and she was told to collect the drugs from the fire hose at the 11^th floor of Wo Ping House and await further instruction.  She was arrested shortly after collecting the drugs.

5.The retail value of the ketamine was $48,800. 

The reasons for sentence

6.After reciting the facts of the case the judge referred to the applicant’s antecedents.  She is a lady of previous good character who is 21 years of age and who was educated to Form 5.  She is single and resides with her parents and younger brother and at the time of her arrest was unemployed.  The judge took into account the fact that she was a young person of clear record and that she had played a relatively modest part in the trafficking offence.  He also took into account the fact that the applicant had been extremely cooperative with the police from the outset. 

7.Even though the applicant had not pleaded guilty at the first opportunity he did allow her the full one-third discount for her plea of guilty.  He said that he would adopt as his starting point 9 years’ imprisonment which he then reduced to 6 years’ imprisonment.

The grounds of appeal

8.The applicant has not filed any perfected grounds of appeal or any submission in support of her application for leave to appeal her sentence. In her Form XI she said nothing more than that she wishes to appeal against her sentence and to apply for legal aid.  Before me today she has applied for an adjournment of her application on the ground that she was seeking legal representation.  However no solicitor or barrister has been approached, let alone engaged, to act for her.  I refused her application.  When asked if she had anything to say in respect of her application for leave to appeal her sentence she said she had nothing to say.

Discussion

9.There is no merit in the applicant’s application for leave to appeal her sentence.  The sentencing tariff for ketamine is laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  In that case the Court of Appeal said that a sentencing range of 6-9 years’ imprisonment was appropriate for quantities of 50-300 grammes of ketamine.  As the applicant was in possession of 310 grammes of ketamine the judge quite properly adopted a starting point of 9 years.  Discounted by one-third for her plea of guilty the final sentence became 6 years’ imprisonment. 

10.There being no merit in the applicant’s application for leave to appeal against her sentence, her application is refused.

Ms Audrey Parwani, Ag. SPP, of the Department of Justice, for the respondent

The applicant appeared in person