HKSAR v. CHIU HOI YAN

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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BETWEEN
HKSAR Respondent
and
CHIU HOI YAN (趙凱欣) Appellant

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Before: Hon McWalters JA and D Pang J in Court

Date of Hearing: 17 July 2015
Date of Judgment: 17 July 2015
Date of Reasons for Judgment: 21 July 2015

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REASONS FOR JUDGMENT
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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 grammeof 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 ofthe sentence on Charge 3 to be served consecutively to the sentence on Charge 1, Judge Dufton (the sentencing judge) sentenced theappellant to the overall sentence of 3 years and 11 months’ imprisonment. Acting in person, the appellant applied for and was givenleave to appeal against her sentence by a single judge of this court (Macrae JA). Having heard her appeal, we allowed the appealand 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 twoplastic bags containing a total of 7.74 grammes of heroin. Under caution, the appellant admitted trafficking in those dangerousdrugs (Charge 1). A search was then conducted at the appellant’s home in Shek Kip Mei Estate. There, the police discovered:

(a) three more plastic bags of a total of 11.69 grammes of heroin (also comprised in Charge 1),

(b) one packet containing 0.22 gramme of “ice” and one packet containing 0.38 gramme of ketamine (Charge 3), and

(c) one glass bottle suitable for the inhalation of “ice” (Charge 2).

Under caution, the appellant stated that the heroin in the three plastic bags was for trafficking but the “ice” and the ketaminewere 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 possessionof dangerous drugs and possession of drug‑inhaling equipment. The appellant had not, before the present case, been convicted oftrafficking in dangerous drugs. She resorted to drug trafficking after her boyfriend was sent to prison. It was said that she didso out of financial pressure.

The original sentence

4. The sentencing judge said:

Trafficking in a dangerous drug

5. In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin. The court said where the quantity of narcotic is between 10 and50 grammes sentence upon conviction after trial falls within the range of 5-8 years.

6. Taking into account you have no previous convictions for trafficking I am satisfied that the appropriate starting point after trialfor 19.43 grammes of heroin is 5 years and 6 months imprisonment. Giving you full credit for your plea of guilty reduces the sentenceto 3 years and 8 months imprisonment.

Possession of ice and ketamine

7. In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession shouldbe in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantitieswhere the circumstances so warrant.

8. Taking into account two drugs were possessed for your own consumption and the small quantity of both those drugs I am satisfieda starting point of 9 months imprisonment is appropriate. Giving you full credit for your plea of guilty reduces the sentence to6 months imprisonment.

Possession of apparatus fit and intended for inhalation of ice

9. For possession of apparatus I am satisfied that a starting point of 3 months imprisonment is appropriate. Giving you full creditfor your plea of guilty reduces the sentence to 2 months imprisonment.

Totality

10. I am satisfied concurrent sentences are appropriate for possession of ice and ketamine and possession of apparatus fit and intendedfor inhalation of ice. The two charges are however separate and distinct from the trafficking Charge which concerns heroin. Takingthis into account I order 3 months to be made consecutive to the sentence for trafficking.”

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 groundof appeal. The short point of his complaint was that the sentencing judge erred in ordering three months of the sentence on Charge3 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 dangerousdrugs 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:

“32. If the small quantity of cocaine found in the applicant’s shoulder bag, possibly for his own consumption, were to be includedin the larger quantity found inside the premises to form the subject matter of a drug trafficking charge, it was unlikely that thesentence for the drug trafficking Charge would be different.

….

34. If this amount had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence. It couldnot be right, in our opinion, that because the applicant was going to consume this quantity himself he should now find himself facedwith a longer sentence than he would have received if all the cocaine was to be trafficked by him.”

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 Charge3 be served consecutively to that on Charge 1 and ordered the sentences on all three charges to be served wholly concurrently.

(Ian McWalters) (D Pang)
Justice of Appeal Judge of the Court of First Instance
High Court

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 dangerousdrugs, namely 50.7 grammes of cocaine and 3.04 grammes of “ice” (Count 2) and one count of possession of dangerous drugs, namely0.31 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 sentenceon 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.