CRIMINAL CASE NO. 56 OF 2010
Charge 1 related to a quantity of heroin and a smaller quantity of “Ice” which was seized at the Customs Arrival Hall at the Lok Ma Chau Border Control Point when the defendant returned to Hong Kong from Mainland China. The 2nd count related to dangerous drugs which were found at the defendant’s flat in Kowloon. These were comparatively small quantities of herbal cannabis, cocaine, “Ice”, methamphetamine tablets, and a larger quantity of heroin.
The defendant left Hong Kong through the Lok Ma Chau Border Control Point at 1334 in the afternoon of 9 September 2009 and returned the following day, 10 September 2009 at 2012 hours, through the same control point. She was seen carrying a white plastic bag and was stopped by police at a bus stop where her apparent destination was Mongkok. The defendant told police that she had been in Shenzhen where she had made some food purchases and was later told that the police would have to search her because they suspected she possessed dangerous drugs.
A search took place in a search room in the checkpoint building. The white plastic bag was searched and found to contain items of food, including two boxes of “Pretz” pretzel sticks. When it was opened, the yellow “Pretz” box contained two long, block-shaped objects and the red box contained a third block-shaped object. Police suspected the objects were heroin. When asked what the objects were, the defendant did not answer.
The defendant’s handbag was searched and two disposable cigarette lighters were found. When examined, each was found to contain a resealable plastic bag containing a crystalline substance suspected to be “Ice”. Cash HK$5,210 and Renminbi 2,675 were found in the handbag. When questioned, the defendant said the white powder and the “Ice” were for her own consumption and she repeated this claim after she was arrested and cautioned.
Analysis by the Government Chemist confirmed the nature and quantities of the drugs as set out in the particulars of Charge 1.
The defendant was escorted to her home in Mongkok. The gate was opened with her key. A man called Yeung was found inside, and a house search was conducted. Cash HK$15,113 and Renminbi 585 were found in the wardrobe. Also in the wardrobe were two resealable plastic bags, one larger than the other. In the larger bag was found a plastic bag containing 10 roll-up cigarettes suspected to contain cannabis; a plastic bag containing suspected “Ice”; a plastic bag containing 30 pills which contained suspected methamphetamine, (referred to as “Yaba”), and a plastic bag containing a quantity of suspected cocaine.
In the smaller transparent resealable plastic bag was a further bag containing suspected heroin in brick form, wrapped in paper. A tin on a table was found to contain another quantity of suspected heroin and five further portions of suspected heroin. Two of the five portions, were wrapped in red plastic, three in white plastic, and there was a further bag containing suspected “Ice”. An electronic scale was recovered from the flat. There were also found three mobile telephones and SIM cards.
The Government Chemist analysed the items found in the flat and the quantities and nature of the drugs were as set out in the particulars of Charge 2.
At 2.30 pm on 11 September 2009, while the defendant was in police custody, she exhibited physical problems, presumably withdrawal symptoms, so she was taken to a clinic and later admitted to Caritas Medical Centre. She was discharged from hospital in the morning of 12 September 2010 and in the afternoon of that day, she was interviewed by the police.
Under caution, the defendant told police she had bought the drugs from a man called “Ah Ng” in Shenzhen for HK$28,000. She said it was she who had sealed the “Pretz” boxes with glue after she had torn the packets open. The “Ice” contained in the cigarette lighters was for her own consumption and she told police that the “Ice” and the heroin found on her was for her own consumption.
The defendant said she had rented the flat from August 2009, having asked someone to rent it for her under her name. The rental was $2,600 a month. She usually lived there alone, although her boyfriend occasionally stayed there.
She said she had bought the drugs found inside the flat for her own consumption and sometimes gave some to her boyfriend when he was not well. Initially, she could not remember from whom she had bought the drugs found in her home, but later she recalled that the “Yaba” and cannabis had been purchased on the Mainland. She said that the value of these drugs was not high. The “Yaba” was worth $100 to $200 for two days’ consumption. The “Ice” was worth several hundred dollars and the heroin was worth $1,000-something.
The defendant claimed she had been consuming drugs for about seven years. In the course of the interview, she told the interviewing officer that every day she had to consume about several thousand dollars worth. She was receiving CSSA of $3,000 a month and had been receiving that allowance for about six months. Prior to that, she had worked as a masseuse, earning $20,000 a month.
At the time of the arrest, neither she nor her boyfriend was employed. She contended that the drugs that had been found in the house would last her for three to four days. She explained that she had started consuming large quantities of drugs only recently and that she had paid for the drugs she had brought across the border from her savings.
In September 2009, the street retail price for drugs was estimated at $798 a gramme for heroin, $775 a gramme for “Ice”, $100 a gramme for herbal cannabis, and $856 a gramme for cocaine. The total street value for the heroin in the two seizures was $80,055, for the methamphetamine $4,340, for the herbal cannabis $146, and for the cocaine $273. The total value for the drugs would have been $84,418.
The defendant has one previous conviction for Possession of Dangerous Drugs in 2005, but otherwise was of clear record.
Her personal details show that she is 39 years old. She came to Hong Kong from Mainland China in 1997. Through her counsel, she indicated to the court that she had parents and a younger brother in the Mainland. She has no family or relatives in Hong Kong. She was married at one stage but was divorced in 1999. She would remit money to her parents from time to time, to Shenzhen. She claimed she had managed to make $20,000 per month as a masseuse, but she suffered from chronic back pain and had not been able to work, which is why she was receiving CSSA.
Originally the defendant was abusing heroin but subsequently she took “Ice” as well. She took “Ice” to relieve the back pain. She had taken some form of methadone treatment in 2008, and she explained that by ‘a large quantity of heroin,’ she meant she was taking about 1 gramme a day.
Counsel for the defendant submitted that importing drugs into Hong Kong is an aggravating factor in sentencing but as this importation was for self-consumption, it could be a mitigating factor and should be considered as such. I should point out that addiction is not a mitigating factor and that importing for self-consumption is one of many factors that the court can take into account when considering a proper sentence for the offences.
In considering this matter, I have looked at the case of HKSAR v Wong Suet Hau[2002] 1HKLRD 69 where the concept of social trafficking is investigated. It is a rather meaningless concept perhaps, when sentencing guidelines in Hong Kong are based on the narcotic quantity and almost nothing else. If that description applied in circumstances perhaps similar to this, i.e. where the defendant says that she was supplying her boyfriend with heroin without payment, Wong Suet Hau sets out various factors that the court can take into account when considering this aspect of sentencing.
In this case, I take into account the fact that the defendant is an addict, that she has no previous trafficking charges, and certainly, the quantities of “Ice”, the cannabis, the “Yaba” and the cocaine were quantities which indicate self-consumption.
However, against those factors are the value of the drugs and, on the financial circumstances explained by the defendant to the police, I do not consider the defendant would have been able to fund her purchases without engaging in trafficking. Her comments about her daily intake being 1 gramme a day are not made out and although I accept that in this case there is an element of self-consumption, it is highly unlikely that her consumption was in the quantity that was put forward by counsel or, indeed, to the extent put forward by the defendant in her interview.
The court also has to take into account the fact that this was an importation of drugs and that can, in certain circumstances, increase the starting point. The court should also take into account the latent risk factor in having this quantity of drugs brought into Hong Kong where it is accessible to Hong Kong residents, including friends and acquaintances of the defendant, whether for payment or otherwise.
Although in this case it appears there is a cocktail of drugs, the Lau Tak Ming guidelines would appear to prevail in terms of the sentencing range.
On the 1st charge, I take a starting point of 8 years and increase that by 6 months for the latent risk factor and 6 months for the importation. That makes 9 years as the starting point. I give the full discount and sentence the defendant to 6 years’ imprisonment.
In respect of the 2nd charge, I take a starting point of 3 years and sentence the defendant to 2 years’ imprisonment.
I order that the sentence on Charge 2 runs concurrently with that on Charge 1.