HKSAR v. Chiu Hoi Yan
Read the full judgment text of CACC 295/2014 on BabelCite. This Court of Appeal judgment was delivered on 21 July 2015 before McWalters JA and D Pang J.
Criminal law – drug trafficking – heroin – 'ice' – ketamine – possession of apparatus for inhaling dangerous drugs – sentencing – totality – consecutive sentences – manifestly excessive sentence – Criminal appeal – Whether sentencing judge erred in ordering a consecutive term for personal-use possession of small quantities of 'ice' and ketamine alongside a sentence for trafficking in 19.43 grammes of heroin – Court of Appeal held that where small personal-use quantities, if included in the trafficking charge, would not have altered the starting point, it could not be right that the offender should face a longer sentence merely because he or she intended to consume those drugs personally – Approach in HKSAR v Ip Yuet Ho [2008] 6 HKC 35 and HKSAR v Or Wai Tong, CACC 250/2009 applied – Starting point for trafficking in 19.43 grammes of heroin at 5 years 6 months after trial per R v Lau Tak Ming [1990] 2 HKLR 370 reduced to 3 years 8 months on guilty plea – Starting point for personal-use possession of 'ice' and ketamine at 9 months per HKSAR v Mok Cho Tik [2001] 1 HKC 261 reduced to 6 months on guilty plea – Starting point for possession of inhaling apparatus at 3 months reduced to 2 months on guilty plea – Sentence on Charge 2 wholly concurrent – Order making 3 months of Charge 3 consecutive to Charge 1 quashed – All three sentences ordered to run wholly concurrently – Overall sentence reduced from 3 years 11 months to 3 years 8 months' imprisonment – Appeal allowed.
Legal issues: Whether sentencing judge erred in ordering consecutive term for small-quantity possession of 'ice' and ketamine alongside heroin trafficking sentence
Outcome: Appeal allowed; overall sentence reduced from 3 years and 11 months to 3 years and 8 months' imprisonment.
Cited by 7 cases · Cites 5 cases
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CACC 295/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 295 OF 2014 (ON APPEAL FROM DCCC 602/2014) _________________
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________________________ REASONS FOR JUDGMENT Hon D Pang J (giving the reasons for judgment of the court): 1.On a charge sheet containing three counts, the appellant pleaded guilty to Charge 1, trafficking in 19.43 grammes of heroin[1], Charge 2, possession of apparatus fit for inhaling dangerous drugs, Charge 3, possession of 0.22 gramme of “ice” and 0.38 gramme of ketamine, and was sentenced to the respective terms of 3 years and 8 months’ imprisonment, 2 months’ imprisonment and 6 months’ imprisonment. By ordering the sentence on Charge 2 to be wholly concurrent with the sentences on Charges 1 and 3, but 3 months of the sentence on Charge 3 to be served consecutively to the sentence on Charge 1, Judge Dufton (the sentencing judge) sentenced the appellant to the overall sentence of 3 years and 11 months’ imprisonment. Acting in person, the appellant applied for and was given leave to appeal against her sentence by a single judge of this court (Macrae JA). Having heard her appeal, we allowed the appeal and reduced her overall sentence to one of 3 years and 8 months’ imprisonment. These are our reasons. The facts 2.On 17 May 2014, in a stop and search outside 52 Fuk Wing Street, Sham Shui Po, the appellant was found to be in possession of two plastic bags containing a total of 7.74 grammes of heroin. Under caution, the appellant admitted trafficking in those dangerous drugs (Charge 1). A search was then conducted at the appellant’s home in Shek Kip Mei Estate. There, the police discovered:
Under caution, the appellant stated that the heroin in the three plastic bags was for trafficking but the “ice” and the ketamine were for her own consumption. Background and mitigation 3.The appellant was aged 40. She had six previous convictions. Amongst those convictions were one for each of the offence of possession of dangerous drugs and possession of drug‑inhaling equipment. The appellant had not, before the present case, been convicted of trafficking in dangerous drugs. She resorted to drug trafficking after her boyfriend was sent to prison. It was said that she did so out of financial pressure. The original sentence 4.The sentencing judge said:
Ground of appeal 5.Mr H Y Wong, who did not receive his instructions until after leave to appeal was granted, put forward two but in effect one ground of appeal. The short point of his complaint was that the sentencing judge erred in ordering three months of the sentence on Charge 3 to be served consecutively to the sentence on Charge 1, thus rendering the overall sentence manifestly excessive. Discussion 6.There is clearly merit in this appeal. 7.As the single judge pointed out in his judgment on the leave application, had the appellant been trafficking in all of the dangerous drugs found in her possession, both on the street and at her home, including the small amounts of albeit different drugs (“ice” and ketamine), the overall starting point would have been the same as the one adopted in respect of Charge 1. 8.A similar approach was adopted in HKSAR v Ip Yuet Ho [2008] 6 HKC 35[2]where, giving the judgment of this court, Yeung JA (as Yeung VP then was) had this to say:
See also HKSAR v Or Wai Tong, CACC 250/2009 (3 December 2009, unreported)[3] where the Ip case was cited with approval. 9.Mr N Wong, for the respondent, did not seek to argue otherwise. 10.For the above reasons, we allowed the appellant’s appeal, quashed the judge’s order that three months of the sentence on Charge 3 be served consecutively to that on Charge 1 and ordered the sentences on all three charges to be served wholly concurrently.
Mr Wong Hay Yiu, instructed by Boase Cohen & Collins,assigned by Director of Legal Aid, for the appellant Mr Nicholas Wong SPP, of the Department of Justice, for the respondent [1] All the quantitative references in this judgment are by weight of the drug’s pure narcotic content. [2] Ip was charged with and pleaded guilty to one count of manufacturing dangerous drugs (Count 1), one count of trafficking in dangerous drugs, namely 50.7 grammes of cocaine and 3.04 grammes of “ice” (Count 2) and one count of possession of dangerous drugs, namely 0.31 grammes of cocaine (Count 3). While the drugs forming the subject matter of Count 2 were found in a room that Ip had rented, the small amount of drug involved in Count 3 was found in his shoulder bag. The sentencing judge nevertheless ordered the sentence on Count 3 to be served consecutively to the concurrent terms passed on Count 1 and Count 2. Ip appealed. [3] Coram: Ma CJHC (as Ma CJ then was) and Stock VP. |
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