HKSAR v. WONG WING KWAN

DCCC 233/2022

[2023] HKDC 542

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 233 OF 2022

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REASONS FOR SENTENCE

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The charge

1.  The defendant pleaded guilty to the charge of trafficking in dangerous drugs on the first day of the trial, the particular of the charge said that on 9 April 2021, outside Room 1707, Yan Ying House, Tin Yan Estate Tin Shui Wai, the defendant unlawfully trafficked 7.34 g of a crystalline solid containing 7.26g of ice.

The facts

2.  On 9 April 2021, the police intercepted the defendant when she was on the way to Room 1707, Yan Ying House and found inside her backpack the ice she was charged with.

3.  The defendant was arrested for the offence of trafficking dangerous drugs. She said under caution that all the drugs were for her own consumption.

4.  Further search from the defendant, 3 mobile phones were found:-

(a)  one from her person;

(b)  two from her handbag.

5.  The estimated street value of the drugs was about $4,154.

6.  In a video-recorded interview, the defendant said that:-

(a)  She often used ice to relieve pain after her traffic accident in July,2020.

(b)  She called a man to buy ice at $4,000 for 9 small packages. The male delivered the ice to her at the roundabout in Tin Yan Estate.

(c)  She kept the ice inside her backpack. She was intercepted outside her home.

(d)  She was unemployed and received $9,000 CSSA per month and spent about $4,000 to purchase “ice”.

Criminal record

7.  The defendant has 5 criminal convictions: -

(a)  Theft in 1993 and 2002;

(b)  Possession of dangerous drugs in 2002;

(c)  Trafficking for dangerous drugs in 2013, sentenced to 8 years’ imprisonment and was released in 2018.

Representation/change of counsel

8.  The defendant was originally represented by Mr. Karl Keung and this case has been adjourned pending sentence.  On the day of sentence, Mr Keung indicated to the court that the defendant would like to give evidence as to the issue of self-consumption.  There were a number of adjournments to clarify the defendant ‘s stance in this matter on the day of sentence.  Eventually, this court was informed that Mr. Leung would not be continued to represent the defendant.

9.  On the mention date, Mr. Chan was instructed to represent the defendant and requested further mitigation submission, apart from adopting Mr. Keung’s mitigation.

10.  Further medical report, psychological and psychiatrist reports were also called for and they are now ready today.

Mitigation

11.  The defendant is now 42 years old.  Her parents were separated when she was young.  She was brought up by her grandparents.

12.  She has a car accident in July 2020, in which she suffered from broken bones in both legs and jaw bone.  She received HK$63,940 subsidy under the Government Traffic Accident Victims Assistant Scheme.

13.  She used to be a sale prior to her remand in 2013. At the time of the arrest, she received $9,000 CSSA monthly from the government.

14.  The drugs she purchased were substantially used for self-consumption to relief pain of the car accident injuries.  About 50% of the drugs were for her own used.  The defence asked for 10 to 15% discount from the starting point and further 25% discount because of her late plea.

15.  In both of her own and Father Weatherspoon’s mitigating letters, they said that the car accident has “seriously damaged her physically and emotionally.”  As a result of which she also suffers from depression and anxiety.

Medical report

16.  The medical report informed this court that the defendant has a history of:-

(a)  Thyroid cancer in 2018;

(b)  Mental illness;

(c)  Uterine fibroid;

(d)  Chronic instability of left ankle;

(e)  Traffic accident in 2020 due to drug overdose and she suffered serious injuries, she underwent multiple surgical procedures and received physiotherapy;

(f)  She is currently followed up and received treatments and medications from gynecological clinic, orthopedic clinic, neurosurgical clinic and surgical clinic at Queen Elizabeth hospital. She also attends the Mental Health Clinic of Castle Peak Hospital.

Psychiatric report

17.  The defendant started to receive mental health services since 2016 for “mental and behavioral disorder due to use of stimulants”.  She was also referred to psychiatric outpatients’ clinic in August 2021 for adjustment problem.

Psychological report

18.  The defendant started to take heroin at the age of 12 and began as a nightclub hostess since 15 years old intermittently until mid- 30’s.

19.  She has a harsh upbringing with multiple abuse histories.

20.  The clinical psychologist concluded that she “presented with a longstanding history of substance use disorder and borderline personality disorder, leading to a vicious cycle of unstable interpersonal relationships and psychological maladjustment.”

The prosecution’s stance

21.  The prosecution does not agree that the drugs were for the defendant’s self-consumption as the packaging of the drugs were as follows:-

(a)  All the drugs were contained in a black paper box which contained 3 red paper bags. There were altogether 9 small packets inside the 3 red paper bags.

(b)  Paper bag 1:-

(i)  On the surface of the red paper bag, there was a white sticker paper with hand written words of “175 x 3”;

(ii)  Inside the paper bag 1, there was a transparent resealable plastic bag with two red packaging papers, with the words “175” written on each of the bag;

(iii)  Total narcotic content of Ice was 3 g.

(c)  Paper bag 2:-

(i)  There were 2 transparent resalable plastic bags, one of which contained a red packaging paper with the word “波” written on it and it also contained 1.14 g of ice;

(ii)  The other one contained 2 red packaging papers with the words “大麻” and “天瑞1000” respectively and the narcotic content was 1.68 g of ice.

(iii)  The prosecution said that those words have meaning to it. They are names and “天瑞” is one of estates in Tin Shui Wai;

(iv)  Where the defendant was arrested was in Tin Yan Estate, also located in Tin Shui Wai.

(d)  Paper bag 3:-

(i)  Inside paper 3 bag, there were 3 transparent resealable plastic bags, on the of surface of the paper 3 bag, there were white stickers with numbers written on it, they were 500, 200 and 300.

(ii)  The first one red packaging paper with the white sticker, there were words “200” written on it and it contained 0.22 g of narcotic content;

(iii)  The second one containing two red packaging paper with the white sticker on it with the written number of “300” each of the bags. Total narcotic content was 0.68 g of ice;

(iv)  The third one containing a red packaging paper with a white sticker and written number “500” on it, it contained 0.54 g of ICE.

22.  The prosecution said that by looking at the packaging with the written numbers, names and name of the estate on them, the defendant was in possession of those drugs for further delivery for unlawful trafficking.  She was not the end users.

Sentence

23.  According to the sentencing guideline for trafficking of ice in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that for the narcotic content up to 10 grammes, it falls into the sentencing bracket of 3 to 7 years’ imprisonment.

24.  In the present case, the narcotic content is 7.26 g of ice, it attracts a sentence of 5 years 11 months.

25.  Five trial days have been fixed since July,2022.  The defence indicated a guilty plea to the prosecution and the court some 2 weeks prior to the trial day.

26.  Having considered the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, I take 25% discount for the starting point. The sentence comes down to 4 years 5 months 7 days.

Self-consumption

27.  The defence submitted that a significant proportion ( half )  of the drug were for her own used to alleviate the pain she suffered as a result of the car accident.  The defence also submitted the medical report to this court that she had undergone surgeries as a result of the car accident.

28.  I accepted that the defendant did have a car accident in July 2020, some 9 months later, she was arrested for the present case.

29.  The applicable principles for self-consumption can be found in the case of Wong Suet Hau and other [2002] 1 HKLRD 69.  To determine the issue of self-consumption, it is not necessary to hold a Newton hearing.

30.  It is finally clarified and confirmed that the defendant would not give evidence in relation to the claim of self-consumption.

31.  Clearly, “where the mitigation has necessitated the holding of a Newton enquiry, after which the mitigation is rejected, the court will be entitled to reduce ……, the discount normally given, following a plea of guilty.” (para 34(5)  of the judgement of Wong Suet Hau CACC 366/2000 refers)

32.  I also informed the defence that having regard to the dangers of the abuse of this avenue of mitigation, this court should look with greatest care at all the surrounding circumstances of the case in order to decide whether or not to accept the mitigation of self-consumption.

33.  In the case of HKSAR v Cheung Wai Man [2019] HKCU 179, the Court of Appeal said that:-

“54. … a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, …… will generally not suffice. …… It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form.”

34.  The defence listed out a number of factors to support the claim of self-consumptions:-

(a)  The defendant received public assistance of about $9,000 per month.

(b)  She spent about $4,000 of the subsidy to buy drugs.

(c)  The cost of the drugs seized was only $4,154.

(d)  The defendant had a serious car accident in July 2020.

(e)  The defendant has a history of substance abused, that was support by the medical reports and her criminal record – one record of possession of dangerous drugs in 2002.

(f)  At the time of her arrest, she said under caution that she had the ice in possession was to alleviate pain after her car accident in July,2020.

(g)  She was tested positive of ice after her arrest.

(h)  She obtained the package of ice from a drug pusher at a roundabout in Tin Yan Estate. When she was arrested, she was on the way home. She had keys to Room 1707.

Addresses

35.  The defence submitted the bank statements of the defendant to this court.  The address was in Fanling.  Not Room 1707.

36.  After clarification, it is now clear that the Fanling address was her finance ‘s address.  At that time of her arrest, her finance was in joal. After the car accident, it was inconvenient for her to walk upstairs in the Fanling apartment.  Therefore, she moved to live with Mr Ng ( now is her ex-boyfriend )  in Room 1707.

37.  Her finance was released from prison in July 2021, the defendant then moved back to Fanling.

As to the rate of consumption of Ice

38.  As to the rate of consumption of ice, it was submitted by the defence that the “defendant smoked ice 4 to 5 times a day and the total amount of ice she consumed each day was about 0.4 to 0.5 grammes .” And half of the drugs seized were for her own used.  That was about 3.63g (7.26g /2 = 3.63 g).

39.  By taking 0.4 to 0.5 g a day, 3.63 g would last for about 14 to 18 days, roughly for about half a month.

Profit about $2,000

40.  The defence told me that the defendant also made a profit of about $2,000 for trafficking the other half portion of ice.  While the costs of the remaining portion (50%)  of the drug was about $2,000.

41.  What is important to note was that the profit she made was enough to finance herself for the 50% of the drugs that she used.

42.  What the defendant is saying is that it had a high profit margin by selling the remaining portion of the drugs.

43.  The defendant admitted to the summary of facts that the street value of the drugs seized was about $4,154.

44.  That means half of the drugs for trafficking was about $2,000.  If she made $2,000 as profit, that means 50% of the drugs could sell for $4,000 including costs.

45.  I have great doubt about this assertion.  Why on earth that the end users would pay 100% more to buy drugs from her.

Packaging of the drugs

46.  Furthermore, by looking at the packaging and the words written on the red packets, it is not as simple as the defence asserted that “it is neither here nor there.”

47.  If they were for her own consumption, why there were packed in different packages with words written on it.

48.  Those words were written on white stickers.  They were purposely sticked on the surface of the packets.  By looking at the writings, one can tell that they were written by one person with the same pen.

49.  The packet with the numbers, 500, 200 and 300 written on the white sticker on the main red packet corresponded with the 3 smaller packets contained in it.  The 3 surfaces of the 3 smaller packets were each individually marked 300, 500 and 200 (I refer to the photos 14 and 15 provided by the Prosecution).

50.  Same as photos 16 and 17 for 175 x 3

51.  As to photos 18 and 19 there were names written on it.  There was also a reference to a place “天瑞”, the prosecution informed me that there was a Tin Shui Estate.  While the defendant was arrested in Tin Yan Estate, The location of the 2 estates are nearby and also situated in Tin Shui Wai.

Defendant’s financial resources

52.  On the other hand, the defence said that she admitted to the police that she was a drug addict , the drugs were for her own consumption and her urine test after the arrest indicated ice positive finding.  

53.  However, the question to pose is this:- did she has $4,000 to buy the drugs in question?

54.  The defence said that the defendant has the financial resources:-

(a)  The Social Welfare Department’s Traffic Accident Victims Assistance Scheme has deposited 2 lump sums to her bank account, (she only holds one bank account):-

(i)  $55,337 on 30/10/2020

( attachment of Mr. Keung ‘s submission bundle )

(ii)  $8,603 on 26/1/2021

( attachment of Mr. Keung’s submission bundle )

(b)  She received about $9,000 CSSA from the government monthly.

(c)  The summary of facts stated that the estimate street value of the drugs was about $4,154.

55.  The defence provided me with a bundle of bank statements from March 2018 up to April 2021 (the month she was arrested for the present offence). However, there was no statement for the months of June 2020 to October 2020 and March 2021.

56.  From the November 2020 statement, I can see that the balance on:-

(a)  31 October, 2020 was $30,067.53

(b)  4 November 2020 was only $126.64.

(c)  30 November 2020 was $0.68.

57.  The monthly CSSA of $8,960 from the government was deposited into her account on the first of December 2020 , but the balance was reduced to $10.46 on the same date.

58.  The statements also showed that she received the subsidy for the month of January 2021 on 31 December 2020, but balance was reduced to $13.08 on the same date.  Although she has had numerous unknown and unexplained deposits during the month, it ended up with only $0.55 by 31 January 2021.

59.  On 1 February 2021, the defendant received $8,603 from the Social Welfare Department and also $7,910 CSSA, but the balance on the same day was reduced to $175.09.  By the end of February 2021, she has nothing left in the bank account.

60.  The bundle of bank statements missed out a month in March 2021.  But the April statement showed a balance of $0.28 on 31 March 2021.

61.  The defence said that the defendant apart from taking dangerous drugs, she also gambled with a small amount occasionally. She also preferred to keep cash. That explained why her balance in each month was reduced to almost nothing.

62.  Let’s examine the bank statement of April 2021 when she was arrested on 9^th April, 2021.

63.  The April statement showed a deposit of $9,910 CSSA on 1 April 2021, there were numerous transfers to other accounts before the balance was reduced to $4,500.88 on 2/4/2021.

64.  On 2/4/2021, there was an unknown deposit of $4,000 and it was ( $4,000 )  transferred out on the same day. Leaving a balance of $4,500.88

65.  Between 3/4/2021 to 4/4/2021 , there were also a lot of transferred to other accounts.  By 4 April 2021, the balance was $0.45

66.  On 7 April 2021, there was another unknown deposit of $4,500, but there were 2  transfers in total of $4,000 to 2 different persons on the same day, leaving her the balance of $500.45.

67.  In essence, the bank statements record showed that the defendant has no savings whatsoever, the subsidy from the Traffic Accident Victims Assistance Scheme had long been used or dissipated within days or weeks of deposit.

68.  The CSSA deposited into her account usually spent within the same day of deposit.  The defendant has no means to earn any income.

69.  She clearly has no financial means to purchase the drugs in question.  

Conclusion

70.  My conclusion was that the drugs were not for her self-consumption.  I agree with the Prosecution that those drugs found on her were for forward delivery. The mitigation of self-consumption has not made out.  The defendant is not entitled to any further discount on the sentence.

Sentence

71.  I order the defendant to serve a sentence of 4 years 5 months 7 days.