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Hksar v Dong Juan

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date02 June 2020
Neutral Citation[2020] HKCA 441
Year2020
Judgement NumberCACC242/2019
CourtCourt of Appeal (Hong Kong)
Subject MatterCriminal Appeal
CACC242/2019 HKSAR v. DONG JUAN

CACC 242/2019

[2020] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCCC NO 371 OF 2018)

________________________

BETWEEN

HKSAR Respondent
and
DONG Juan (董娟) Applicant

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 2 June 2020

Date of Judgment: 2 June 2020

________________________

J U D G M E N T

________________________


1. On 7 August 2019, the applicant pleaded guilty before Deputy Judge Bruce SC (“the judge”) to a single count of unlawfully trafficking in a dangerous drug; namely, 55 grammes of a crystalline solid containing 50.1 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She had been committed to the High Court for trial on 26 November 2018, having indicated her intention before a magistrate of pleading not guilty to the charge. It was only at a case management hearing some 6 months later, on 20 May 2019, that she signalled for the first time her intention of pleading guilty to the charge. Having pleaded guilty in accordance with her earlier indication, the judge sentenced the applicant to 7 years’ imprisonment.

2. Having filed Notices of Application for Leave to Appeal (by way of Form XI) on 13 August 2019 in respect of sentence, and on 24 December 2019 in respect of conviction, the applicant subsequently filed a Notice of Abandonment in respect of her application for leave to appeal against sentence, on 11 March 2020. Under Rule 39 of the Criminal Appeal Rules, Cap 221A, her appeal against sentence was thereby deemed dismissed. She now applies for leave to appeal against conviction out of time only.

The facts admitted before the High Court

3. On the evening of 30 April 2018, the police intercepted the applicant as she was entering a building at 50 San Tsuen Street in Tsuen Wan, New Territories (“the building”) and, upon a search of her person, discovered beneath her trousers two red packets each containing a transparent re-sealable plastic bag of dangerous drugs. One of the bags was later found to contain 25.1 grammes, while the other was found to contain 25 grammes of “Ice” narcotic, together making the quantity particularised in the indictment. Upon her arrest and caution, the applicant admitted that she had carried the drugs from the Mainland for a reward of HK$1,500. The admission was post recorded by WPC 16014 (“PW1”) in her notebook and signed in confirmation by the applicant.

4. In a subsequent video recorded interview (“VRI”), the applicant explained her involvement in the offence. She said, inter alia, that she was inveigled by a female acquaintance, whom she referred to as ‘Big Sister’, into carrying things from the mainland, and threatened that if she refused to do so her family would be harmed. She said that out of fear, she complied. All along, she claimed that she did not know the contents of the red packets and had never opened them. However, when the police officers showed her the dangerous drug seized, the applicant said it looked like ‘white powder’.

5. The detail of the story she gave in her VRI was as follows. At about 7 pm on 30 April 2018, the applicant was approached by an unknown person giving her an instruction from Big Sister. Accordingly, she went to Shenzhen via Lo Wu and took a taxi to Huanggang Port as instructed. She was told that she would be followed during her journey. Upon arriving at Huanggang Port, an unknown woman approached her and instructed her to pick up a black plastic bag in a planter next to the ladies’ washroom. She picked out two red packets from the bag and put them in her trousers, before disposing of the bag. Accompanied by the same woman, the applicant then returned to Hong Kong across the Huanggang border and took a shuttle bus back to Tsuen Wan. When she alighted from the shuttle bus, another woman approached the applicant and instructed her to wait at a particular 7-11 convenience store in Tsuen Wan, where someone would collect the items from her. She was told she would earn HK$1,500 when she had completed the task. The applicant waited in the store but nobody approached her. She was then informed by yet a third woman that she was to wait at the rooftop of the building where she resided. Accordingly, she was in the process of returning home when she was intercepted by police.

6. In pleading guilty before the judge, the applicant specifically admitted knowingly possessing the “Ice” in question for the purpose of unlawful trafficking.

Mitigation

7. In mitigation, the applicant’s counsel acknowledged that, even though the applicant claimed that her family had been threatened, she complied with Big Sister’s demand when she knew she could have reported the matter to the police. It was expressly accepted that the applicant had no defence to the charge. It was further submitted that when the quantity was viewed arithmetically, a quantity of 50.1 grammes of “Ice” narcotic would attract a starting point of 9 years and 8 months’ imprisonment in accordance with the guidelines in HKSAR v Tam Yi Chun[1].

8. As for the discount, counsel accepted that the applicant had not pleaded guilty at the first available opportunity, but on the first day of her trial. Nevertheless, she had thereby allowed an 8-day case to be vacated from the court list and was entitled to a discount of between 20 and 25%, pursuant to the guidelines set down in HKSAR v Ngo Van Nam[2]. Counsel urged the court to give the applicant a discount of 25% for her plea.

9. In respect of the cross border/international element, the judge was invited to exercise his discretion and give the applicant a nominal enhancement only for that factor.

The judge’s sentence

10. The judge noted that the applicant was 45 years of age and of clear record. She had arrived in Hong Kong from the Mainland in 2008. She was married but separated with three children aged between 7 and 25.

11. Applying the Tam Yi Chun guidelines, the judge adopted a starting point of 9 years and 6 months’ imprisonment, which he enhanced by two months for the international/cross-border element, in accordance with the principles laid down in HKSAR v Chung Ping Kun[3].

12. As for the discount for her late plea, the judge gave the applicant a discount of 27% from the enhanced starting point. The resulting sentence passed on the applicant was 7 years’ imprisonment.

The applicant’s grounds of appeal

13. By way of four letters dated 13 and 27 November 2019, 2 December 2019 and 9 March 2020, the applicant has set out her grounds of appeal. These grounds concern conviction, although the applicant did not in fact file the relevant Form XI Notice in respect of conviction until 24 December 2019.

14. With respect to what is now alleged by the applicant, it is necessary to mention certain further matters surrounding the applicant’s arrest and her dealings with the police. On 30 April 2018, the applicant was arrested together with a man called Wang and a woman called Ng. Other than the present charge in relation to the dangerous drugs found in her own possession, the applicant was originally jointly charged, together with Wang and Ng, with trafficking in certain dangerous drugs found in Room B on the 2nd Floor of the building which the applicant was entering when she was arrested (“the premises”). However, the charge in relation to the drugs found in the premises was withdrawn in the magistrate’s court on 25 July 2018. Following three return dates, the charge in respect of the dangerous drugs found on her person was committed to the High Court for trial on 26 November 2018.

15. The gist of what the applicant alleges in her letters is that the police fabricated the case against her, because there never were any dangerous drugs found on her person. She claims that she was assaulted and threatened by a male police officer to make admissions. Further, she alleges that “the lawyer had me plead(ed) guilty, (saying that) it would be a wise choice (and that) the chances of winning were slim. In the end, conflicted (and confused), I had no choice but to admit to such ridiculous charge”[4].

16. The applicant has filed no affidavit/affirmation to explain her reasons for delay in filing a Notice of her application for leave to appeal against conviction. However, she has asserted in her letter of 13 November 2019 that she did not know which department to approach, so she intended to wait until she was granted legal aid, when she could discuss with the lawyer the application for leave to “appeal for a re-trial”[5].

17. The contents of the applicant’s various letters may be summarised as follows. In her letter dated 13 November 2019, she claims that the case originally involved 112.2 grammes of “Ice” narcotic and three defendants, namely, the applicant, Wang and Ng. The applicant and Wang rented the premises jointly, with the applicant lived in the east room of the premises, whilst Wang and Ng lived in the west room. On the day of the incident, she was repeatedly urged by Wang over the telephone to return to the premises, saying that he would pay her the rental and give her some “goods of high quality to consume”. On arriving at the premises, she saw some police officers together with Wang and Ng[6]. When she walked inside, the red bag she was carrying, which contained snacks and soft drinks, her key(s) and her mobile telephone, were seized by a female police officer. Another police officer used her key to gain access to the east room. They then conducted a body search on the applicant and a search of the east room, yet no dangerous drugs were found. She saw that all the drugs involved in the case had been placed on a table in the west room, with scales, inhalation device(s),...

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