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Hksar v Tan Xiu Yun

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date16 October 2015
Year2015
Citation[2015] 5 HKLRD 872
Judgement NumberCACC346/2014
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC346/2014 HKSAR v. TAN XIU YUN

CACC 346/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 346 OF 2014

(ON APPEAL FROM HCCC 306 OF 2013)

------------------------

BETWEEN
HKSAR Respondent
and
TAN XIU YUN (譚秀雲) Applicant

------------------------

Before: Hon Macrae JA and McWalters JA in Court
Date of Hearing: 13 October 2015
Date of Judgment: 13 October 2015
Date of Reasons for Judgment: 16 October 2015

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1. On 30 September 2014, the applicant was convicted in the Court of First Instance by M Poon J on her own plea of one count of trafficking in a dangerous drug, namely, 222.64 grammes of a crystalline solid containing 216.17 grammes of methamphetamine hydrochloride (“Ice”) , contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced to 8 years and 4 months’ imprisonment. By a Notice of Application for Leave to Appeal filed on 10 October 2014, the applicant applies for leave to appeal against her sentence.

2. At the hearing of the application we dismissed it and said we would hand down our reasons for doing so at a later date. This we now do.

The facts of the case

3. At about 1:58 am on 20 March 2013, the applicant, the holder of a PRC permit for travel to and from Hong Kong and Macau, was seen by police to be walking nervously along the pavement holding a white plastic bag in her hand, tight to her waist area. She was intercepted and it was found that inside the white bag there was another bag containing nine packets of suspected dangerous drugs. The applicant was also in possession of a quantity of currency amounting to $24,955. Under caution, she stated that the “Ice” did not belong to her and she was delivering it for another. She said she charged $500 for each packet of drugs.

4. It was subsequently found that the suspected dangerous drugs seized from the applicant contained the “Ice” that is the subject of the charge. The retail value of this “Ice” at that time of its seizure was estimated at $176,998.

Mitigation

5. The applicant, aged 45, is from the Mainland but is married to an elderly Hong Kong man who is dependant upon CSSA for his financial support. This man is her second husband. She was a housewife and previously worked as a waitress. She has two children, aged 15 and 18 respectively, from a previous marriage who are being looked after in the Mainland by her first husband. The applicant has one previous unrelated record for gambling for which she was fined $500 in 2012. The judge, however, said this was a minor offence and she would treat her as a person of clear record for the purpose of sentencing her in this case.

6. It was said on the applicant’s behalf that she was remorseful as shown both in a letter she wrote to the court and her early guilty plea. Her counsel informed the court that she committed the present offence because she and her aged husband were in financial difficulty. Her counsel conceded in the course of his speech at the sentencing hearing:

“Other than the guilty plea, it is accepted that there is no other mitigating factors other than the guilty plea.”

No mention was made of the applicant being a drug user or of any of the drugs in her possession being for her own consumption.

The Reasons for Sentence

7. Having considered all the circumstances of the case and the sentencing guidelines set out in AG v Ching Kwok Hung [1991] 2 HKLR 125, the judge adopted a starting point for sentence of 12½ years’ imprisonment. The applicant was given a full one-third discount for her guilty plea which reduced the sentence to one of 8 years and 4 months’ imprisonment.

Grounds of appeal

8. In a letter submitted to the court by the applicant for a mention hearing on 15 July 2015, the applicant stated for the first time that part of the “Ice” found on her was for her own consumption. In summary she said that:

(i) she started consuming “Ice” since 2006 and she consumed about 5 grammes of “Ice” each day;

(ii) the urine test report obtained by her legal representative indicated the presence of “Ice” in her urine sample;

(iii) her legal representative had advised her not to submit the urine test report to the court as she had not told the police about it at the time of the arrest and thereafter. Her legal representative said that there would not be any facts or further evidence to substantiate her claim unless she testified in court. She was told that she might not receive the full one-third discount on the sentence if the judge did not believe her after hearing her testimony;

(iv) she was so flustered that she did not ask her legal representative to submit the report to the court.

9. Furthermore, the applicant submitted a medical report dated 21 March 2014 prepared by the medical officer at Tai Lam Centre for Women which showed that urine samples taken from her on 22 March 2013 (two days after the arrest) tested positive for amphetamine. This is the urine test report that the applicant contends her counsel advised her not to produce to the court.

10. In a subsequent letter to the court the applicant set out her Grounds of Appeal which essentially repeated what she had said in her earlier letter.

11. At the hearing the applicant repeated what she had said in her letters. She said the legal advice she received was that because she had not mentioned to the police that part of the drugs were for her own consumption her claim would not be believed by the judge. If the judge did not believe her then her one-third discount would be at risk.

12. She also corrected a mistake she had made in her letters to the court when she said she consumed 5 grammes of “Ice” per day. She said this should be 0.5 grammes per day. She also claimed, for the first time, that she could take as her reward part of the drugs that she was delivering, in lieu of a monetary payment.

Discussion

13. The applicant has no complaint about the starting point the judge adopted and her application is based solely on her complaint that she did not receive any discount for self-consumption because, on the advice of her counsel, self-consumption was not advanced by him in mitigation.

14. The applicant’s claim that part of drugs seized from her were for her own consumption can only be raised on appeal if a factual basis is laid for it. This factual basis is the evidence of the applicant and of the Tai Lam medical officer as set...

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1 cases
  • Hksar v Majid Muhammad
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 February 2017
    ...v. Sandagorj & Anor [2014] 1 HKC 206. [6] HKSAR v. Wong Suet Hau & Anor [2002] 1 HKLRD 69, paragraph 34(3). [7] HKSAR v. Tan Xiu Yun [2015] 5 HKLRD 872, paragraph [8] HKSAR v Sandagorj & Anor, paragraphs 20-22; HKSAR v SHAH Syed Arif [2016] 4 HKLRD 664 at paragraph 30. [9] HKSAR v Norena Gu......

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