IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 56 OF 2003
(ON APPEAL FROM DCCC 641 OF 2002)
Coram: Hon Stuart-Moore, Ag CJHC and Woo JA in Court
Date of Hearing: 6 August 2003
Date of Judgment: 6 August 2003
J U D G M E N T
Stuart-Moore, Ag CJHC (giving the judgment of the Court):
1. On 27 January 2003, the Applicant, aged about 32, was sentenced to two years’ imprisonment for being the tenant permitting premisesto be used as a divan, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, having confirmed the earlier plea of guilty she had entered in the Magistrates’ Court when she appeared in the DistrictCourt before Judge Sweeney. She now seeks leave to appeal against her sentence.
2. The facts were straightforward. On 26 January 2002, two police officers went to a first floor flat in Mongkok where they were posingas drug addicts. The Applicant took them inside the flat where her accomplice “Cheung” (D1 at trial) offered them heroin in varyingquantities. The officers opted for a medium quantity for which the price was $130. When Cheung handed over the drugs, he was immediatelyarrested.
3. A search of the flat ensued. Eleven men and three women were found on the premises and a large amount of drug-taking paraphernaliawas discovered.
4. Later, in interview, the Applicant admitted she had rented the premises and that she had done so in order to earn a reward of $1,000.She said that she had then become an employee whose job was to open the door to customers who came there to consume “white powder”.She stated that she had worked in this way on eight to ten occasions for which she was paid $400 each day.
5. Further investigation revealed that the premises had been let to the Applicant on 10 December 2001 for a period of two years at amonthly rent of $8,000.
6. The Applicant has been before the courts on seven previous occasions, four of which related to the possession of dangerous drugs.
7. The judge took a starting point of three years’ imprisonment which he reduced to two years to give full credit for the Applicant’splea. The discount accorded to the Applicant was generous. This had not been a timely plea. Having been arrested on 26 January 2002,the Applicant was eventually bailed to appear in the Magistrates’ Court for her plea to be taken on 13 August 2002. However, shejumped bail and was not re-arrested until 16 November 2002. During her appearance on that day, she then indicated she would be pleadingguilty and on 3 December 2002, she duly did so. Thereafter, her case was transferred to the District Court. However, her accomplice,Cheung, had already been dealt with by this stage. In the result, therefore, the Applicant’s conduct resulted in a duplication ofthe court work which had to be done and of the costs necessitated by this.
8. During this application, we have been invited by Mr Percy, on the Applicant’s behalf, to consider a number of previous sentencingdecisions which concerned “keeping a divan”, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance. For practical purposes, that offence is more or less on an equal footing with the charge we are presently considering, althoughthe decisions we were shown were to some degree complicated by the presence of at least one charge of trafficking in dangerous drugs.This being said, it is apparent that the sentencers in those cases considered that starting points in the region of two years (HKSAR v. Ng Ka-wing, Kevin, CACC 563/1999) down to twelve months’ imprisonment (HKSAR v. Cheung Kung-hang, CACC 459/2000; HKSAR v. Ho Sai-chak, HCMA 780/1999) were appropriate for keeping a divan.
9. It has very properly been brought to our attention by Mr Madigan, appearing on the Respondent’s behalf, that Cheung pleaded guiltybefore a different judge on 12 September 2002 to keeping a divan and trafficking in 8.52 grammes of heroin hydrochloride. Givingone third discounts from the starting points of twenty-one months and four years’ imprisonment respectively, Cheung was sentencedto concurrent terms of fourteen months and two years and eight months’ imprisonment.
10. Whilst we shall not approach this case on the basis of any disparity in sentence, we are nevertheless left wondering why the judgein these proceedings sentenced the Applicant to a longer term of imprisonment than Cheung when Cheung, if anything, bore the greaterresponsibility.
11. In all the circumstances, without laying down a guideline for this kind of offence, for which a statutory maximum of fifteen years’imprisonment is provided, we have concluded that the Applicant’s sentence was manifestly excessive.
12. We propose to undertake the sentencing exercise afresh and to take a starting point of twenty months’ imprisonment. We shall reducethis by 25% to reflect the Applicant’s late plea bearing in mind that she absconded while on bail.
13. We shall, therefore, give leave and, treating the hearing as the appeal, we shall reduce the Applicant’s sentence from two yearsto fifteen months’ imprisonment. To this extent, the appeal succeeds.
Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent.
Mr Duncan Percy, instructed by Director of Legal Aid, for the Applicant.