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HCCC 307/2018
HCCC 308/2018
(Heard together)
[2019] HKCFI 1367
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NOS 307 & 308 OF 2018
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| Date: |
12 April 2019 at 10.22 am |
| Present: |
Mr Ross Phillip, on fiat, for HKSAR |
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Mr Albert W H Luk, instructed by C Yu & Co, assigned by
DLA, for the accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant faced one count of trafficking in a dangerous drug. She was convicted after trial by a unanimous jury. She was charged that on 31 July 2017, she unlawfully trafficked in dangerous drugs, namely 25.6 grammes of a crystalline solid containing 25.5 grammes of ‘Ice’ in Che Kung Miu Road, Tai Wai, New Territories.
She had already pleaded guilty to one count of failing to surrender to custody without reasonable cause. Essentially, she absconded. She breached her bail conditions for the trafficking charge by failing to appear in Eastern Magistracy. She pleaded guilty to that count on the first day of this trial in HCCC308/2018. I will deal with both charges together in sentencing today.
It was not disputed by the defendant that on that date she was stopped by the police at a roadblock at 1.45 am whilst travelling in a taxi with another man. A woman police officer PW2, WPC15210 was asked by a superior officer to search the defendant at 1.52 am. That other male was also arrested for possession of dangerous drugs by another officer.
PW2 patted the defendant over her clothes from top to bottom but when she reached her blue jeans, she noticed a bulge at her right side pelvis bone. PW2 reached into her jeans waistband and took out the bulging item which was a black and pink small metal box Exhibit P2. She opened the box and found five resealable transparent plastic bags all containing white crystalline solid particles. Those five bags were of different sizes, weight, and were sealed.
The defendant told PW2 that the bags contained ‘Ice’, a dangerous drug, and she had purchased them not long before the police roadblock. She said that she had purchased them from a man in Tai Kok Tsui for 6,000. It included the tin box P2. She bought dangerous drugs for her own self-consumption. She said after her arrest for possession of dangerous drugs and after she was cautioned that she was unhappy and the ‘Ice’ was for her own consumption. She asked the officer for a chance.
That same day but much later in the evening, a video‑recorded interview was conducted and she once more admitted possession for self-consumption only.
The defendant also relied on a urine test conducted while she remained in custody three days after her arrest which tested positive for ‘Ice’ and cocaine. She elected to give evidence, explained her drug taking history and why her ‘Ice’ daily dosage had increased to about 1 gramme per day after July 2016 because she was so upset by her boyfriend who had cheated on her.
She explained that she had had steady employment since 2010, earning a good income and therefore able to afford a serious drug habit. She had said in her video-recorded interview that she consumed over 3 grammes per day and that she had bought enough ‘Ice’ to last her one week.
The defendant corrected this in the witness box and said she did not know why she had said this but she was mistaken. She blamed her extreme tiredness during the video-recorded interview for her mistake.
She gave evidence after the doctor gave evidence. He had said a heavy user of 1 gramme per day would exhibit debilitating mental and psychological problems. They would not function normally or live a normal life. He knew a very few who consumed 2 to 3 grammes a day. His evidence made it very unlikely that she took 3 grammes per day which may explain her correcting that dosage in her oral evidence. Having watched the video-recorded interview, the defendant did not look tired or sound tired. In fact, probably the opposite.
The defendant had given evidence about her purchase of the ‘Ice’ a few hours before her arrest. She explained where, when and for how much. She told PW2 at the scene of arrest she paid 6,000 and in her video-recorded interview, she mentioned two figures, 6,500 and 8,000. She said she had consumed some of the ‘Ice’ at a friend’s home just before she boarded the taxi. PW2’s evidence was that all five bags were sealed when the defendant was arrested.
There was police evidence that 25.6 grammes of ‘Ice’ had an estimated retail value of $11,633 in July 2017.
The police officer also explained that drug dealers do not give significant discounts unless at least 250 grammes of ‘Ice’ is purchased in bulk. Here, on the defendant’s evidence, she paid 6,500. Therefore she enjoyed a discount of nearly 45 per cent for buying 28 grammes if the estimated retail value was $11,633. On her own evidence that the retail value was $8,000 as quoted by the drug dealer, she enjoyed a discount of about 20 per cent from him. The defendant gave evidence that she always paid about that much for that quantity of ‘Ice’, not the higher amount estimated by the police.
The jury obviously did not believe the defendant’s evidence and unanimously found her guilty of trafficking that amount of ‘Ice’. The defendant was initially refused bail after her arrest but ultimately successfully applied for it in the High Court on 6 September 2017. However, she did not comply with the bail conditions and appear in court, therefore, a warrant of arrest was issued on 12 March 2018 when she failed to surrender to custody at the fifth return day hearing in Eastern Magistracy.
On 30 May 2018, she was arrested again. This time for illegally gambling and the warrant of arrest was executed. She has been in custody since. Her explanation for her absence was that she was not legally represented for that hearing so she was afraid she would be detained.
I have heard mitigation today and Mr Luk has said all he can say on behalf of the defendant. She is now 27 years old and when arrested for this offence, had a clear record. She was living with her mother; her father passed away when she was very young. She did not complete Form 4.
She disclosed in the witness box that she had been working in a shop for six years from 2010 until her long term co‑habiting boyfriend cheated on her. This trauma affected her work performance and she was terminated in August 2016. She then began to work as a PR hostess in a nightclub in Sham Shui Po where she earned between $40,000 to $50,000 a month.
HCCC308/2018
In order to arrive at an appropriate sentence for failing to surrender to custody without reasonable cause, I have taken into account the time-lapse between the commission of this offence and the warrant of arrest being executed. It was approximately ten weeks before the police were able to execute the warrant of arrest and that was only because she was caught during a police operation targeting illegal gambling.
Mr Ross has referred me to several authorities and submits that the absconding offence is wholly distinct and separate from the trafficking dangerous drugs offence. The failure to surrender to custody does bring the administration of justice into disrepute, and in principle, the authorities find that sentences should run consecutively to the sentence for the substantive offence. However, any sentencing court must still consider the totality principle.
After considering the facts in mitigation, I find a starting point of 9 months’ imprisonment appropriate to reflect the seriousness of this offence.
The defendant had indicated at the appropriate stage that she would plead guilty to this offence and is entitled to a one-third discount for her guilty plea. After that discount is applied for the offence of failing to surrender to custody without reasonable cause, the defendant will serve a 6 month term of imprisonment.
HCCC307/2018
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore the starting point for trafficking in 25.5 grammes of ‘Ice’ in this case, mathematically speaking, is 8 years’ imprisonment.
Discount for self-consumption.
On the issue of self‑consumption, the defence claim that a significant proportion of the ‘Ice’ was for her own use. The question for this court is whether part of the ‘Ice’ was for her own use as she claims or whether all of it was to be trafficked.
Mr Luk, for the defendant, makes the following points to support the self‑consumption claim. The urine test conducted upon remand showed that she tested positive for cocaine and amphetamine ‘Ice’. Mr Luk urges me to believe her evidence that she is a heavy and habitual user of ‘Ice’ and that it is plausible a large proportion of the drugs were for self-consumption as now claimed.
The Court of Appeal decision of HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69 sets out the principles for a sentencing court when considering the issue of self-consumption. I have referred myself to, in particular, paragraph 34 of that authority.
Mr Luk has urged me to consider HKSAR v Choi Chun Wo, CACC 273/2017. The Court of Appeal has there made it very clear that the defendant is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by her. This significant proportion was said in Wong Suet Hau to be a proportion that would make a difference to her sentence. Mr Luk has urged me to consider paragraph 29 of that authority and I quote:
“When a less than significant proportion of the unquantifiable drugs is accepted as being for the defendant’s own consumption, then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact, as explained in Liu Ming Sze, paragraph 28 and 29.”
The citation for that authority is HKSAR v Liu Ming Sze [2017] 1 HKLRD 69.
Any sentencing court must be satisfied of and what must be proved to the court’s satisfaction is that all or a significant proportion of the drugs were for self‑consumption and if true it may well make a difference to sentence. When considering whether this mitigation is true, normal rules for determining the factual basis for sentence apply and if accepted, it is unnecessary for the judge to specify the amount for self-consumption except in the broadest of terms.
The sentencing court should consider whether the claim is credible and then proven to the court’s satisfaction, often a Newton Hearing will be required to do this. Bold assertions or mere assertions will not suffice as a rule unless not challenged. Therefore the court should be presented with credible and reliable information that is material to this mitigation. The only solid evidence is the result of the urine test conducted. The defendant’s daily dosage and drug habit cannot be determined because she has given contradictory evidence. She said in the record of interview that she took over 3 grammes per day and then in the witness box she said it was 1 gramme per day or did not say for how long she had been consuming 1 gramme per day.
Moreover, she did give evidence that she consumed some of the drugs just prior to arrest but PW2’s evidence was that all five bags were still sealed, there was not one that had been opened. Mr Ross has pointed out that I did sum up to the jury on the basis that they could convicted the defendant of trafficking if they believed some of the drugs was for self‑consumption and some for trafficking.
If this mitigation is accepted, then a discount of a range between 10 to 25 per cent has been suggested in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 at paragraphs 19 and 20.
I have considered the factors relied on by the defendant to put forward a credible claim and I find it just enough to support or resolve a contested claim of self-consumption.
I am satisfied that a proportion of the drugs was intended to be consumed by the defendant but not a significant proportion. There will be a small discount to reflect the quantity she claims to be for self-consumption. The discount would not be significant because simple possession of dangerous drugs in itself is an offence which would call for a term of imprisonment. There is always a latent risk that these bags would have been sold for a profit if the opportunity arose rather than kept for self-consumption.
This latent risk is high, considering the fact she was arrested with another male in the taxi who had possession of cocaine. In addition, she said she had consumed ‘Ice’ at her friend’s home just prior to arrest with her friend but her friend had her own drugs. There is always a latent risk that the opportunity will arise in such company of sharing or selling one’s own drugs.
I have considered mitigation, facts of the case, and the defendant’s background, including her previous clear record. I will take 7 years and 6 months as the starting point for this quantity of cocaine. I will reduce that starting point by 12 months, which is just over 13 per cent to 78 months to reflect the mitigation put forward of self-consumption. The defendant was convicted unanimously by a jury after trial therefore there is no entitlement to any further discount.
For the charge of trafficking in dangerous drugs in HCCC307/2018, the defendant is therefore sentenced to 6 years and 6 months’ imprisonment.
For the charge of failing to surrender to custody in HCCC308/2018, the defendant is sentenced to 6 months’ imprisonment.
I have taken into account the totality principle but also taken into account that the latter offence is wholly separate and distinct from trafficking in dangerous drugs. I will order that 4 months of HCCC308/2018 be served consecutively to the 6 years and 6 months of 307 of 2018 and the balance concurrently. Therefore, the defendant is sentenced to a total of 6 years and 10 months’ imprisonment.
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