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Hksar v Cheng Ling Ling

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date06 November 2018
Neutral Citation[2018] HKCA 790
Year2018
Judgement NumberCACC66/2018
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC66/2018 HKSAR v. CHENG LING LING

CACC 66/2018

[2018] HKCA 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2018

(ON APPEAL FROM HCCC NO 289 OF 2017)

_______________

BETWEEN
HKSAR Respondent
and
CHENG Ling Ling Applicant

_______________

Before: Hon Zervos JA in Court
Date of Hearing: 31 October 2018
Date of Judgment: 6 November 2018

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J U D G M E N T

_______________

1. The applicant applies for leave to appeal against the sentence of 6 years and 8 months’ imprisonment imposed on her by Andrew Chan J on 2 March 2018.

2. The sentence followed her conviction on her own plea to trafficking in a dangerous drug, namely 82.2 grammes of a solid containing 24.1 grammes of ketamine (Count 1), doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug, namely 84.5 grammes of a powder containing phenacetin, a Part 1 Poison (Count 2), trafficking in a dangerous drug, namely 22.4 grammes of a powder containing 62.4 grammes of ketamine and 18.27 grammes of a solid containing 13.14 grammes of cocaine (Count 3), and doing an act for the purpose of trafficking in a substance she believed to be a dangerous drug, namely 481 grammes of a powder, which did not contained either a dangerous drug or a Part 1 Poison, and 153.2 grammes of a powder containing phenacetin, a Part 1 Poison (Count 4).

3. The two offences of trafficking were contrary to section 4(1)(a) and (3) and the two offences of doing an act for the purpose of trafficking were contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap 134.

4. The brief facts giving rise to the offences were that on 17 October 2016, police officers intercepted the applicant, who was in the company of a male, outside a shopping centre at Tai Wai, Shatin. The police officers searched the grey bag that the applicant was carrying and found 7 packets containing a total quantity of 24.1 grammes of ketamine narcotic (Count1) and 6 packets containing 81.5 grammes of a powder containing phenacetin (Count 2). They also found in her possession two mobile telephones and cash of $1395.10. The male was also searched but nothing suspicious was found on him. The police officers arrested the applicant and after she had been cautioned she said, “For the K Chai in that small grey recycle bag, I carried it for someone only.”

5. The police officers then conducted a search of the applicant’s residence where they found one packet containing 62.4 grammes of ketamine narcotic and 24 packets inside 2 packets of 13.14 grammes of cocaine narcotic (Count 3), and one packet of a substance containing 481 grammes of a powder and 57 packets of a substance containing 153.2 grammes of a powder containing phenacetin, amounting to 634.2 grammes (Count 4). Also present in the residence were two electronic scales and one packet of resealable plastic bags. After being cautioned, she said, “Ah Sir, that pile of stuff is dangerous drug too. I also helped others carry it outside to someone only.”

6. In a subsequent video recorded interview, the applicant, when shown the 13 packets seized from her, said they were all ketamine which she recognised because she used to take it when she was young (the 13 packets relating to Counts 1 and 2), and when shown the other items found at her residence, said the two packets were cocaine (Count 3) and all other packets were ketamine (Count 4). She explained that in the evening on 16 October 2016, she received all the drugs from an unknown male. She was instructed to package the drugs, and in order to do so she purchased two electronic scales. After packaging the drugs, she was to pass them to another person on 17 October 2016 for which she would receive $1000 for every 1000 grammes of drugs.

7. It was admitted that the street value of the ketamine was $85,495 and the cocaine was $19,110. It is noted that the street value of ketamine was calculated on a total of 310.89 grammes of a powder which was then multiplied by $275 (being street value of ketamine per gram), but the actual ketamine narcotic involved was 86.5 grammes. It is not clear how the street value of cocaine was calculated, whether it was done on the total solid of 18.27 grammes or the actual cocaine narcotic of 13.14 grammes.

8. The judge in his reasons for sentence outline the mitigation presented on behalf of the applicant. She was at the time of sentence 34 years old and a single parent with an 8-year-old son. She was on welfare benefits and as a result of financial difficulties she agreed to package the drugs for another. It was submitted that she needed the money for her son’s extracurricular activities and out of greed and stupidity she committed the present offences.

9. This is how the judge sentenced the applicant[1].

10. On Count 1, for 24 grammes of ketamine he adopted a starting point of 54 months’ imprisonment which he reduced by one third for the applicant’s plea of guilty to 36 months’ imprisonment. It should be noted that on an arithmetic calculation of the guideline tariff the starting point is 56 months’ imprisonment[2].

11. On Count 2, he noted that the applicant had trafficked in 81.5 grammes of a substance purported to be ketamine and for the purpose of sentencing treated her the same as he did on Count 1 and imposed a sentence of 36 months’ imprisonment after her plea.

12. On Count 3, for 62.4 grammes of ketamine he adopted a starting point of 72 months’ imprisonment and for the 13.14 grammes of cocaine he enhanced the sentence by 1 year to 84 months’ imprisonment which he reduced by one third for the applicant’s guilty plea to 56...

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