The defendant is charged with two offences. The 1st charge, doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Chapter 134; and the 2nd charge, possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134. The case was transferred by the District Court to the Court of First Instance pursuant to section 77A(3) of the District Court Ordinance, Chapter 336, for plea and sentence. This morning, defendant pleaded guilty to both charges before me and admitted the amended Summary of Facts dated 1 June 2023 pertaining to the two charges.
Facts
According to the amended Summary of Facts, following a report of dispute a male and female standing by a vehicle with a registration number WW3704 (“the vehicle”), at about 1.44 am on 12 November 2020, police officers arrived at Lamppost No. AD5280, Sham Chung Road, Yuen Long, New Territories. They found the vehicle as seen but there was no one on board. Later, upon search, a plastic bag containing suspected dangerous drugs, Exhibit 1, was found underneath the left rear seat of the vehicle.
At about 2.45 am on the same day, the police officers intercepted the defendant near Lamppost No. AD5278 which was about 50 to 60 metres away from the vehicle. She appeared to be nervous and upon inquiries, the defendant admitted that the vehicle belonged to her and she had a dispute with her boyfriend previously.
The defendant was then cautioned for Exhibit 1 as found inside the vehicle. Under caution, she admitted that Exhibit 1 was “pork” and that meant ‘Ice’ or methamphetamine. She further admitted that Exhibit 1 belonged to her and she bought it for selling to others. She would repack Exhibit 1 into 1.7 grammes per pack and sell it at HK$1,500 each. She also admitted that the vehicle belonged to her and she was driving the vehicle at about 1.30 am on 12 November 2020.
Defendant was then arrested and cautioned again. Under caution, she admitted that the ‘Ice’ belonged to her.
A key card of Room 2010 of Panda Hotel in Tsuen Wan (“the room”), two mobile phones, and cash of $7,547.30 were found in the handbag carried by the defendant.
Later, a search was then conducted at the room. Upon search, a bottle containing suspected dangerous drugs, Exhibit 2, was found under the bed frame of the room. According to the staff of Panda Hotel, the defendant rented the room on 27 October 2020 for a month.
Subsequent video-recorded interviews were later conducted with the defendant. Under caution, she had committed, inter alia, the following. At about 10:44 pm on 12 November 2020, she left the Panda Hotel and went to Yuen Long to pick up ‘Ice’. She then put the ‘Ice’ in the vehicle. When she was being intercepted, she was planning to drive the vehicle back to the Panda Hotel. She planned to sell the ‘Ice’ to others at 1,500 to HK$1,700 per 1.7 grammes. And the cannabis found in the room (Exhibit 2) also belonged to her and it was for her own consumption.
The seized exhibits, Exhibit 1 and 2, were then later sent to the government laboratory for examination. The government chemist confirmed that Exhibit 1 was 435 grammes of a solid which did not contain any dangerous drugs and Exhibit 2 was 2.10 grammes of cannabis in herbal form.
Criminal Record
The defendant has a clear record.
Antecedent
The defendant, a female, aged 36, was born in Szechuan and was educated up to Secondary 3 in the mainland and resided in Hong Kong since 2014. She lived with her husband and two daughters at a public housing estate in Yuen Long but before the offences, she had moved out due to the poor relationship with her husband. She claimed to be unemployed at the time of the arrest and she became a drug addict a few years ago before the offence and she consumed ‘Ice’ two or three times a month.
Mitigation
Mr Franco Kuan, counsel for the defendant, told the court that the defendant was married in Hong Kong in 2009. She later moved to Hong Kong in 2014. The defendant committed the present offences while she was separated with her husband and she was clearly under the bad influence of her boyfriend then.
The defence submitted two mitigation letters written by defendant’s husband and a neighbour. Mr Kuan submitted that the letters both spoke in the defendant’s favour and said the offences were committed out of defendant’s character. During the period when defendant was granted bail pending sentence, Mr Kuan said she continued to work and take care of her two daughters. Her husband has now totally forgiven and fully supported her and she is completely remorseful for what she had done. The risk of reoffending is therefore said to be low.
Mr Kuan emphasised the fact that all along, the defendant has indicated her intention to plead guilty to the charges and this case was originally to be dealt with in the District Court and the hearing for plea and sentence was fixed on 17 August 2022. But following an application by the prosecution, to which the defendant raised no objection, it was subsequently transferred to the Court of First Instance on 19 September 2022 for sentence and it took almost another year before the hearing today.
Now, due to the subsequent turn of events, the defendant will now, they say, face a significantly increased sentence. It is submitted therefore that there is a legitimate grievance which the court can take into account in sentencing.
In mitigation, Mr Kuan referred to the Court of Appeal cases in HKSAR v Li Oi Yee, CACC 362/2010 (unreported, 2 November 2011) and in particular, a Chinese judgment, a Chinese case, 魏海峰[2020] HKCFI 1360, in which Hon. Joseph Yau J had ordered a significant reduction of more than 60% from the starting point on the basis that the substance was in fact not dangerous drugs.
Mr Kuan urged the court to adopt the same approach and perhaps even considering a larger discount on account that the substance found in the present case were simply sodium chloride, which is commonly known as table salt, according to a statement made by the government chemist dated 30 August 2021.
Consideration - Charge 1
The present offence carries the same maximum penalty for the offence of trafficking in a dangerous drug, that is on conviction on indictment to a fine of HK$5 million and to imprisonment for life. The charge is therefore of course very serious and anyone who is convicted of the offence will be severely punished by the court. Family circumstances virtually plays no part in the mitigation.
In the case of Li Oi Yee, the appellant was convicted after trial of attempting to traffic in a dangerous drug and was sentenced to 4 years’ imprisonment. She was stopped and searched and three resealable bags which contained 39.5 grammes of a substance which she believed to be ‘Ice’ but which upon analysis turned out not to be a drug at all. The appellant said that she had purchased the substance believing it to be ‘Ice’ and intended it for her own consumption.
Stock VP (as he then was) said, paragraph 8:
“The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of criminality. Whilst part of the sentence in any dangerous drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs cases is that of deterrence. It is the aim of the court firmly to dissuade erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes erroneously that he is trafficking in dangerous drugs to suggest that he should by reason of happenstance to be immune from that deterrent policy.”
And then at paragraph 12:
“The court should indeed look at the sentence which otherwise will be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the court should, at the same time, accord a reduction in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to an ultimate consumer.”
Now, the Court of Appeal in that case found that the judge correctly took the view that had the substance in fact been ‘Ice’, the appropriate sentence would have been one in the region of 8 to 8½ years’ imprisonment. And the sentence of 4 years imposed by the judge could hardly be said to have been excessive. Indeed, no justifiable complaint could have been made had the sentence been one of 5 years’ imprisonment. The appellant’s appeal her sentence was therefore dismissed.
In another Court of Appeal case, HKSAR v Cheng Ling Ling endorsed what was said in Li Oi Yee. Zervos JA said in that case, paragraph 28:
“In summary, a sentencing court should therefore look at the sentence which would have been imposed for trafficking in the drugs the defendant believed he or she possessed, and accord reduction in recognition of the fact that the physical element of the offence brought with it little, or no harm.”
However, it is to be noted that Zervos JA also said at paragraph 30:
“We point out that none of the cases mentioned suggested a percentage discount, and we do not endorse this approach because the discount that should be given for the ‘no harm’ factor will very much depend upon the particular facts and circumstances of the case.”
Bearing in mind the sentencing principles laid down in Li Oi Yee and Cheng Ling Ling, I am required to first look at the sentence which would otherwise be imposed for trafficking in the ‘Ice’ and then make a reduction of sentence for the “no harm” factor.
Now, according to the guideline set down in HKSAR v Tam Yi Chun [2014] 5 HKLRD 524, the relevant starting point on conviction after trial between 300 and 600 grammes is 15 to 20 years’ imprisonment. Here, the total amount of the substance in Exhibit 1 and that is the plastic bag found under the left rear seat of the vehicle is 425 grammes of a substance which the defendant believed to be ‘Ice’.
According to the amended Summary of Facts, the monthly average percentage purity of ‘Ice’ at the time of the offence was 96%. Using 408 grammes therefore as the adjusted quantity of ‘Ice’, on a strict arithmetical application of the guidelines, the initial starting point of the sentence should be 16.8 years which is around 16 years and 10 months.
The starting point also has to be further increased on account of the role played by the defendant in this case which is more than a courier or a storekeeper. A further 6 months will be added to reflect the fact that defendant’s role in repackaging and reselling which brings the notional starting point to 17 years and 4 months’ imprisonment.
Obviously, the above is only a pure arithmetical calculation. Now, having looked at the sentencing range and bearing in mind the worry and anxiety experienced by the defendant for a further delay of the hearing due to the transfer from the District Court to the Court of First Instance, I shall exercise my discretion to finally adopt a slightly lower initial starting point of 17 years’ imprisonment.
The defendant is entitled to have a sentence reduction for the low harm factor, that is to reflect the fact that what she possessed was not ‘Ice’ and therefore no actual harm would be caused to the consumer.
Each case has its own facts and the percentage of discount for the “no harm” factor will obviously be fact sensitive. The percentage awarded by Hon. Yau J which is more than 60% was of course not binding on me in this case. In the case, unlike Cheng Ling Ling, the substance involved here is only table salt and not even a Part I poison. Now, adopting the approach of the Court of Appeal in Cheng Ling Ling, I find that a 50% reduction in the sentence would be sufficient to reflect the defendant’s moral culpability and I am prepared to give a 50% discount of sentence from the initial starting point. The notional starting point of sentence is therefore accordingly reduced to 8½ years’ imprisonment.
The sentence shall be further reduced by one-third on account of her timely plea. The sentence on Charge 1 after the reduction therefore should be 68 months or 5 years and 8 months’ imprisonment.
Charge 2
The subject matter of the charge, the 2.1 grammes of herbal cannabis found in the hotel room belonged to her and it was obvious that it was all for her own consumption. In Choi On Yan [2020] 2 HKC 259, a simple possession case involving a much larger quantity of herbal cannabis, 259.91 grammes, defendant was given only 2 months’ imprisonment after guilty plea.
Here, the quantity was only 2.1 grammes. The defendant pleaded guilty to the charge and is a person of clear record. I consider a fine of HK$3,000 is sufficient for the punishment for this charge and with the consent of the defendant, the fine shall be deducted from her bail money.