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CAC C 362/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 362 OF 2010
(ON APPEAL FROM DCCC NO. 453 OF 2010)
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BETWEEN
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HKSAR |
Respondent |
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And |
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LI OI YEE （李靄儀） |
Appellant |
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Before: Hon Stock VP, Wright J and M. Poon J in Court
Date of Hearing: 2 November 2011
Date of Judgment: 2 November 2011
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J U D G M E N T
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Hon Stock VP (giving the judgment of the Court):
1. On 7 October 2010 the appellant was convicted after trial in the District Court by Judge Geiser of the offence of attempting to traffic in a dangerous drug contrary to s. 4 (1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and Section 159G of the Crimes Ordinance, Cap. 200. She was sentenced to 4 years’ imprisonment and now appeals that sentence, leave having been granted by the single judge.
2. Shortly after midnight on 26 February 2010, the appellant was stopped by police outside her flat in a building in Mong Kok. She was carrying a handbag inside which was a metal box which contained three re-sealable bags which, in turn, contained 39.5grammes of a substance which the appellant believed to be methamphetamine hydrochloride but which, upon analysis by the Government chemist, turned out not to be a drug at all.
3. The appellant said that she had purchased the substance for $13,600 believing it to be “Ice” and intended it for her own consumption. The assertion as to that intention was disbelieved; the judge was satisfied that she was in possession of the substance with intent to traffic it but, because it was not a drug and the appellant believed it to be a dangerous drug, the charge was properly laid as an attempt to traffic in a dangerous drug and of that offence she was convicted.
4. The judge correctly took the view that had the substance in fact been methamphetamine hydrochloride, the case would have been brought in the High Court and that the appropriate sentence would have been one in the region of 8 to 8 ½ years’ imprisonment.
5. He then said that he did not find the current sentencing guidelines for trafficking in “Ice” helpful because the appellant was not actually trafficking in drugs. He added:
“Whilst you were not trafficking in “Ice”, the gravamen of this offence is that you intended to and in a significant quantity. Clearly, a deterrent sentence is necessary. You will go to prison for 4 years.”
6. The grounds of appeal, which have succinctly and with ability been argued by Mr Hung, assert that the judge erred in several regards:
(1) that he failed to have sufficient regard to the fact that it was impossible for the appellant to commit the actual offence of trafficking in a dangerous drug so that in the event the punishment should be “more related to the mens rea ... instead of any act or preparatory work of trafficking in a dangerous drug”; and to the further fact that sentences for drug-related offences hinged upon the nature and quality of the drugs involved whereas in this case, since no dangerous drug was found in the substance, the room for potential harm caused to others was “far less than other cases involving trafficking of dangerous drugs”;
(2) that he failed to take into account that had the appellant been arrested whilst she was actually selling the substance she could have been prosecuted pursuant to the provisions of s. 4A of the Ordinance, for which a maximum sentence of seven years is prescribed, as opposed to a sentence of life imprisonment prescribed by section 4 of the Ordinance; and
(3) that he failed to recognise that had the substance contained but a small quantity of dangerous drugs, the appellant would have been sentenced for that small quantity, a sentence surely less than four years’ imprisonment.
7. With respect, we think that the submissions are misconceived.
8. The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of criminality: see ...
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