The offences which D1 pleaded guilty to are four counts of trafficking in dangerous drug: Count 1, Count 3, Count 4 then Count 5, one count of possession of dangerous drug: Count 6, and one count of possession of identity card relating to another person, Count 7.
In sentencing, I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug concerned, background of each of the defendants and mitigation put forward on their behalf.
It relates to an offence committed on 17 October 2012. At Lok Wah Estate D1 removed two items from a shoulder bag she was carrying and placed the items in the planter box at the flower bed. Police intercepted her and found the items she had just handled. The items contained dangerous drug which was later confirmed to be 36.30 grammes of a crystalline solid containing 35.87 grammes of “ice”.
She was arrested and was later granted bail. She however failed to attend a court hearing on 18 January 2013 and a warrant of arrest was issued.
The other counts arose from a police undercover operation which was conducted in July and August 2013. An undercover police officer, WPC 12961, obtained a telephone number 9610 8557 from a man whom she met at a club. Subsequently she made telephone calls to that number and agreement was made with the man speaking to her on the phone for supplying of 7 grammes of “ice” to her.
On 12 July she was told by the man that they were to meet at CEO Karaoke in Causeway Bay. At about 8.30 pm D2 came and met PW2 at a karaoke room. There, D2 handed over a packet of “ice” to PW2 and received $3,000 from her. The quantity of the dangerous drug concerned was 6.40 grammes of a crystalline solid containing 6.29 grammes of “ice”. (Count 2)
On 23 July the undercover officer made a call to the same telephone number. An agreement was again made with the man on the other side for supplying of 7 grammes of “ice” to her. She was told to go to Barns II Bar to wait for delivery. When she was in the bar, she received a telephone call from a man telling her that someone had been asked to bring the goods to her. Eventually D1 came and gave the officer a plastic bag containing “ice”. The officer gave her $3,000. D1 told the officer that she could call her directly if she wanted drugs in the future.
Thereafter the officer had some telephone conversations with D1 and eventually told D1 that she wanted to buy 7 grammes of “ice” from her. On 9 August, they met at Barns II Bar. There D1 gave the officer one plastic bag containing 6.43 grammes of a crystalline solid containing 6.25 grammes of “ice” and received $3,000 from the officer. (Count 4)
On 15 August the officer again telephoned D1 saying that she wanted to buy dangerous drug. They agreed to meet again at Barns II Bar on the following day. At about 9.30 pm on 16 August D1 came and gave the officer a box which contained a plastic bag. Inside the plastic bag were 6.11 grammes of a crystalline solid containing 5.91 grammes of “ice”. She received $3,000 from the officer. (Count 5)
When D1 was leaving the bar she was arrested. Under caution she said she only intended to earn money so she sold dangerous drugs. When she was taken back to the police station, a tissue containing dangerous drug was found inside her bra. The dangerous drug was 0.08 grammes of a mixture containing heroin hydrochloride. (Count 6)
From inside her handbag was a Hong Kong identity card in the name of Chan Ling-oi. For this D1 remained silent upon being arrested and cautioned. (Count 7)
D1 is 34 years of age. She received education up to Secondary 4. She was married but lived separately with her husband for about 4 years. She has one son and one daughter aged 14 and 10 respectively. She had worked in a pub on a casual basis. She had started consuming dangerous drug, mainly “ice” since the age of 16. She had stopped doing so for several years but resumed consuming 1 or 2 years before her arrest.
She has been convicted a few times before. In 1997 for a copyright offence she was fined. In 2002 for an offence of theft, she was again fined. In September 2011 for an offence of possession of dangerous drugs she was sentenced to receive treatment in a DATC.
In mitigation Mr Davies stressed that D1 is now remorseful and that she had testified against D2. She did not perform a major role in all of these offences and was only earning a little to support her drug addiction. Mr Davies also told the court, with support of a psychiatric report, that D1 has been suffering from drug induced psychosis and is under medication. Mr Davies produced a letter written by D1 in which she expressed her remorse, and a letter written by a District board member pleading for leniency for her.
D2 is now 24 years of age and has received education up to Form 3 level. He is also a drug addict. He is single and was living with his mother and younger siblings. He was unemployed most of the time and had worked at a noodle shop.
He has been convicted on six occasions before. In 2004 he was put on probation for an offence of theft. In April 2009 for an offence of possession of dangerous drugs, he was sentenced to receive treatment at a DATC. In August that year he was again sentenced to DATC for an offence of assaulting a police officer and an offence of possession of items fit for consuming dangerous drug.
In April 2011, he was fined for an offence of fighting in a public place. In July 2011 he was sentenced to DATC for two charges of possession of dangerous drug and in August 2011 he was again sentenced to DATC for the same offence.
In mitigation, Mr McNamara asked the court to adopt a starting point at the lower end of the tariff.
In AG v Ching Kwok-hung [1991] 2HKLR 125, Court of Appeal held that for a case of trafficking in “ice” if a narcotic content was less than 10 grammes, the sentence would range from 3 to 7 years. And if the narcotic content was between 10 to 70 grammes, the sentence would range from 7 to 10 years.
In all the circumstances, noting that although in relation to the last two offences, it was the officer who contacted D1 asking for dangerous drug. D1 was the person who, on the previous occasion told the officer that if she wanted more dangerous drugs she could contact her. I do not see there are grounds to depart from the tariff.
Count 1 involved a substantial quantity of “ice”. As regards each of the other three counts of trafficking, whilst the quantity of “ice” involved was much less, it cannot be said to be not substantial. In any case, as the Court of Appeal noted in HKSAR v Wong Nam Ngan CACC 372/2001 it was persistence in the trafficking activities which makes this a serious case.
These three offences were committed in a span of just over a month. I also note that they were committed while D1 was on bail for the first offence and had failed to appear at a court hearing for that offence. As the Court of Appeal observed in HKSAR v Lui Wai Kam CACC 400/2009 committing an offence on bail was an aggravating factor. For this factor, the starting point of Count 3 to Count 5 should be enhanced by 6 months.
I will adopt the following starting points:
Count 1, 8 years. Count 3 to Count 5 each 5½ years.
For Count 6 which concerns an offence of possession of dangerous drug, having regard to the whole circumstances of the case, in particular that D1 was active in the trade, latent risk cannot be ignored. However in the light that the narcotic content of the drug was not even measurable, I do not see the need of enhancing the starting point. I adopt a starting point of 12 months.
Count 7 concerns the offence of possession of an identity card of another person. D1 is a permanent resident of Hong Kong and there is no need for her to use an identity card of another person to secure her stay in Hong Kong. When she testified, she gave an explanation about how the identity card had come to her possession.
I reject any assertion that D1 possessed the identity card for innocent purpose. I am sure that she possessed the card with sinister motive or as Yeung JA, as he then was, described in HKSAR v Lau Kwok Wo CACC 181/2008, she must be up to no good. In consideration I have borne in mind the fact that D1 had failed to attend a court hearing for a serious offence at a time when she knew she was under a Recall order to DATC and that she must reasonably have contemplated that a warrant of arrest would be issued. Indeed, she openly admitted that she had been trying to avoid the DATC Recall order.
At the same time, I also note that there is no evidence that D1 had actually used the identity card. In the circumstances, I am of the view that a starting point of 18 months is appropriate.
D1 pleaded guilty to all these counts and for this, she is entitled to a one-third discount.
Further, she had testified for the prosecution against D2 in relation to Count 2 and Count 3. After trial, D2 was convicted of Count 2 and not Count 3. The only evidence which directly implicated D2 for Count 3 is the evidence of D1. In the circumstances, it appears to me that the jury did not believe in the evidence of D1 or at least could not be sure that what she had testified is true.
Notwithstanding this, D1 cannot be said not to have come up to proof. Some discrepancies were discovered between her testimony and her witness statements, but having regard to her explanation, I do not think there was major departure in her evidence from what she had said in her witness statements.
D2’s testimony covers Count 2 for which D2 was convicted. It is not certain whether, and if so, to what extent his testimony has an impact on the jury’s decision. Having regard to the jury’s decision in Count 3, I do not think the impact could have been much favourable.
In Z v HKSAR FACC 9/2006 the Court of Final Appeal held that the assistance to the authorities is recognised in mitigation of sentence whether the disclosure concerns crimes for which the defendant is being sentenced, or crimes associated with them or relates to crimes which are unconnected to such crimes.
In the circumstances, having regard to the remarks which the Court of Final Appeal made in Z v HKSAR and the Court of Appeal decision in HKSAR v Chung Chi Kuen CACC 337/2013 I will give a discount of about 45% to D1 in respect of each of the counts of which she now stands convicted. I will impose the following sentences:
Count 1, 52 months. Count 3 to Count 5, each 36 months. Count 6, 6 months. Count 7, 10 months.
Count 1, Count 3, Count 4, Count 5 represent four separate incidents of trafficking committed by D1. Mr Davies asked the court to take into account the total quantity of a dangerous drug involved in Count 3 to Count 5, in consideration of the sentences for these offences.
I note that Lunn J, as he then was, has observed in HKSAR v Touray Edrisa CACC 124/2010 that in cases of multiple unlawful trafficking in dangerous drug that are connected closely in time and factually, the Court of Appeal had said it is appropriate for sentencing just to have regard to the overall quantity of narcotics. It must, however, not be overlooked that his Lordship was referring to trafficking incidents which were connected closely in time and factually. If a situation was not so, a different approach has been adopted.
In HKSAR v Ng Yau Kau CACC 374/2007 the Court of Appeal held that where there are separate incidents of actual trafficking, regardless of whether the undertaking of a second transaction was dependent on the successful completion of the first transaction, different considerations apply. It is not just the totality of drugs in the defendant’s possession which goes to the overall criminality of offence, but also the separate acts of trafficking. In such cases, the correct approach is to adopt separate starting points for each act and then arrive at a total sentence having regard to totality. In HKSAR v Lai Yau-fat CACC 278/2000, Stuart-Moore Acting CJAC said that the combined weight was only one consideration to be borne in mind. In HKSAR v Nurofi Ah CACC 260/2011 and HKSAR v Leung Ka-ho CACC 304/2007 the Court of Appeal adopted the same approach that in the former case further held that trafficking in dangerous drug on different occasions amounting to an aggravating factor.
In my judgment, the practice adopted in these latter cases is applicable to D1 in the present case. Having regard to totality, in my judgment, an overall notional starting point of 12½ years is appropriate for these four counts of offence of trafficking in dangerous drug.
Taking into account the 45% discount which I think D1 is entitled to, the overall sentence to be imposed for these trafficking offences is 6 years and 10 months.
In my judgment, a sentence imposed on Count 6, the possession of dangerous drug count, shall run concurrently with the other sentences.
Count 7 relates to an offence wholly different in nature to the other offences. A concurrent sentence is not appropriate. Having regard to the sentencing principle as highlighted by the Court of Appeal in HKSAR v Ngai Yiu Ching CACC 107/2011, an additional 5 months’ imprisonment term is warranted for the extra culpability this offence carries.
As a result, D1 should be sentenced to a total sentence of 7 years and 3 months’ imprisonment. This can be achieved by ordering the sentences for Count 3 to Count 7 to run concurrently with 35 months of the aggregate sentence for these five counts, to run consecutively to that imposed on Count 1.
In relation to D2, he was convicted only of one count of trafficking in dangerous drug, Count 2, which concerned 6.29 grammes of “ice”. This is the first time he has been convicted of this offence. In all the circumstances, I adopt a starting point of 5 years. Having considered everything said on his behalf, I do not consider D2 is entitled to any discount.
Right, D1, for the above said reasons, I impose the following sentences on you:
Count 1, 52 months.
Count 3, 36 months.
Count 4, 36 months.
Count 5, 36 months.
Count 6, 6 months.
Count 7, 10 months.
I order the sentences for Count 3 to Count 7 to run concurrently with 35 months of the aggregate sentence for these five counts to run consecutively to that imposed on Count 1. So you are to serve a total sentence of 7 years and 3 months’ imprisonment.
D2, for the above said reasons, I sentence you to 5 years’ imprisonment for Count 2.