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Hksar v Sit Yan Yi

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date03 August 2021
Neutral Citation[2021] HKCA 1124
Year2021
Judgement NumberCACC133/2020
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC133/2020 HKSAR v. SIT YAN YI

CACC 133/2020

[2021] HKCA 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2020

(ON APPEAL FROM HCCC NO 64 OF 2020)

_______________

HKSAR Respondent
v
SIT YAN YI (薛欣怡) Applicant

_______________

Before: Hon Zervos JA in Court
Date of Hearing: 3 August 2021
Date of Judgment: 3 August 2021

________________

J U D G M E N T

________________

Introduction

1. On 12 August 2020, the applicant was one of two defendants who appeared before Campbell-Moffat J (“the judge”) for sentence on an indictment that contained three counts.

2. The applicant, whose trial designation was D1, pleaded guilty to one count of trafficking in a dangerous drug, namely 24.50 grammes of a crystalline solid containing 24.20 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Count 1), and one count of possession of dangerous drugs, namely 0.28 gramme of cannabis in herbal form and 0.05 gramme of nimetazepam (Count 2). The other defendant, D2, pleaded guilty to a separate count of possession of dangerous drugs, namely 0.52 gramme of a solid containing 0.41 gramme of cocaine and 0.08 gramme of a crystalline solid containing methamphetamine hydrochloride (Count 3). The judge sentenced the applicant to a total term of 5 years and 8 months’ imprisonment.

3. The applicant applies for leave to appeal against her sentence. The basis of the application is set out in the perfected grounds of appeal filed on her behalf by counsel. There are three grounds of appeal which make the following complaints. In the first ground, it is complained that the starting point adopted by the judge for Count 1 of 8 years’ imprisonment was excessive and not in accordance with the applicable sentencing guidelines. The same complaint is made about the starting points adopted by the judge of 3 months’ imprisonment in respect of the two drugs particularised in Count 2. In the second ground, it is complained that the judge failed to consider passing concurrent sentences for Counts 1 and 2 as they arose from the same incident. In the third ground, it is complained that the judge failed to take into account the totality principle, given that the quantity of drugs in Count 2 were minimal and did not materially add to the criminality involved in Count 1.

The admitted facts

4. At 5:25 pm on 2 December 2018, the applicant checked into a hotel room which had been pre-paid and booked under her name. She was provided with the room key and together with D2 went to the room. In the afternoon on the next day, as the applicant had not checked out after the required check-out time, the hotel staff entered the room with a master key. They found inside the room cigarette buds and aluminium foil. The safe in the room was unlocked and found inside was a quantity of suspected dangerous drugs. The hotel staff then locked the safe with a new password and reported the matter to the police.

5. At 4:10 pm on the same day, the applicant and D2 approached hotel staff on the floor of the room and asked them to open the door to the room. Hotel staff activated the applicant’s room key and alerted the police who were nearby. The applicant and D2 returned to the room where they were arrested by the police.

6. A search of the applicant’s rucksack found one foil pack, containing nine tablets of nimetazepam. On being cautioned for the offence of simple possession, the applicant said she came up to look for a person called “Roy”, who had given the nimetazepam tablets to her. Upon unlocking the safe the police found (i) a bag of Ice, as particularised in Count 1; (ii) a plastic packet containing cannabis in herbal form, which together with the foil pack of nimetazepam tablets, as particularised in Count 2; (iii) two glass devices for consuming dangerous drugs; (iv) a plastic bag containing traces of cocaine; (v) eight empty plastic bags; (vi) a digital scale; and (vii) five plastic straws.

7. After discovery of the additional drugs and related items the applicant was further cautioned, and in response she said it was “Roy” who asked her to come to the room to consume Ice.

8. The CCTV footage of the hotel showed that apart from the applicant and D2 entering and leaving the room at various times, two unknown men separately visited the room on 2 and 3 December 2018, staying in the room for a duration of between 2 minutes and 21 minutes respectively. The applicant’s DNA was found on the plastic bag containing the Ice inside the safe.

9. It was an agreed fact that the estimated value of the Ice found was $11,000.

The applicant’s mitigation

10. The applicant was 31 years of age at the time of sentence. The judge was informed that the applicant got married when she was 21 years of age but had since divorced. She had a 10-year-old son, whom she cared for as well as her mother. After leaving school, the applicant had steady employment but after she got divorced she worked as a manageress of a nightclub where she mixed with bad company and started taking drugs. It was noted that upon her arrest she had tested positive for amphetamine.[1]

11. It was submitted on her behalf that in respect of the offence she was merely helping “Roy” to traffic the drugs as he would supply her with drugs. It was also submitted that the applicant was remorseful and while in custody had taken up courses in marketing and economic accounting. Letters in support of the applicant were submitted to the judge for her consideration.[2]

12. The applicant had two previous convictions for gambling in 2018 for which she was fined.[3]

The reasons for sentence

13. In her sentencing remarks, the judge recited the facts and extensively reviewed the applicant’s background and mitigation. Applying the sentencing guidelines laid out in HKSAR ν Tam Yi Chun,[4] the judge adopted a starting point of 8 years’ imprisonment for the 24.20 grammes of Ice narcotic in Count 1, which she reduced by one third for the applicant’s guilty plea to 5 years and 4 months’ imprisonment.[5]

14. In respect of Count 2, the judge noted that she was concerned with possession of dangerous drugs.[6] She said the quantities of the two drugs were insignificant and accepted that they were for the applicant’s own consumption. She also indicated that she would not enhance the sentence for any latent risk factor. She adopted a starting point of 3 months’ imprisonment for each drug, which she added together and then reduced by one-third for the applicant’s guilty plea to 4 months’ imprisonment.[7]

15. The judge treated the sentences on each count consecutively, which resulted in a total sentence of 5 years and 8 months’ imprisonment.[8]

Ground 1: The...

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