HKSAR v. CHEUNG KWAN WAH, WIN

CACC 356/2018

[2019] HKCA 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 356 OF 2018

(ON APPEAL FROM DCCC NO 463 OF 2018)

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J U D G M E N T

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1.  On 26 November 2018, the applicant was convicted on her own plea before District Court Judge Sham of one charge of trafficking in a dangerous drug (Charge 1) and one charge of possession of a dangerous drug (Charge 2). She was sentenced to concurrent terms of imprisonment of 22 months on Charge 1 and 4 months on Charge 2.

2.  The applicant applies for leave to appeal against her sentence on Charge 1 without specifying any grounds or reasons for doing so.  She appears in person, having had legal aid refused.

3.  On 23 March 2018, the applicant was stopped and searched by police following a traffic accident in which she was a passenger of one of the motor vehicles involved.  The police found on the applicant 13 bags containing a total of 2.56 grammes of cocaine narcotic (Charge 1) and five smaller bags containing a total of 0.82 gramme of cocaine narcotic (Charge 2).  The applicant admitted that the drugs in relation to Charge 1 were for the purpose of trafficking, while the drugs in relation to Charge 2 were for her own consumption.

4.  In sentencing the applicant, the judge applied the relevant authorities and adopted a starting point of 33 months’ imprisonment on Charge 1 which he reduced by one third for the applicant’s plea of guilty to 22 months’ imprisonment, and 6 months’ imprisonment on Charge 2 which he also reduced by one third for the applicant’s guilty plea to 4 months’ imprisonment.  He ordered that the sentences be served concurrently and this resulted in a total sentence of 22 months’ imprisonment.

5.  The applicant had four previous convictions, one of which was for possession of a dangerous drug for which she was sentenced to 5 months’ imprisonment in May 2018.  It appears that the applicant committed this offence whilst on police bail and therefore could have had her sentence enhanced for this factor.  However, the judge chose not to do so.

6.  The judge adopted the correct starting point in relation to each sentence and gave the applicant the full one third discount for her timely plea of guilty.  He ordered that the two sentences be served concurrently, having taken into account the totality principle.  No criticism can be levelled against the judge by the applicant for the total sentence imposed on her.  This application is devoid of merit and is accordingly refused.

7.  The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

Ms Claudia Ko SPP, of the Department of Justice, for the respondent

The applicant appeared in person