HKSAR v. TSE CHOI MING

HCCC 175/2023

[2024] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 175 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. She has admitted unlawfully trafficking in (1)  a total of 255.45 grammes of solid containing 204.75 grammes of ketamine, (2)  a total of 2.85 grammes of crystalline containing 2.12 grammes of menthamphetamine, (3)  12.4 grammes of a solid containing 5.31 grammes of ketamine and 4.13 grammes of methamphetamine, (4)  a total of 22.27 grammes of solid containing 18.69 grammes of cocaine, and (5)  a total of 145 grammes of a solid containing 130 grammes of heroin hydrochloride (a salt of heroin). This plea was entered before a magistrate sitting in Eastern Magistracy on 3 July 2023 and the defendant was committed to the Court of First Instance for sentence.

The Facts of This Case

2.  On 7 June 2021, two detective police officers arrived at the vicinity of Tui Min Hoi Chuen, Sai Kung, New Territories. At 1108 hours, they intercepted the defendant as she came out from the entrance of Tui Min Hoi Chuen and revealed their police identities.

3.  At 1112 hours, the police officers escorted the defendant to Room 21, 3/F, Hoi Tai Lau, Tui Min Hoi Chuen (“Location 1))  to execute a search warrant.  The police conducted a search inside there and found a numbers of resealable plastic bags and plastic bags containing different types of suspected dangerous drugs and also cash for a total sum of HK$20,490 and drug packing paraphernalia such as six packs of transparent resealable plastic bags , one sealing machine and one notebook containing defendant’s dangerous drugs transaction details. 

4.  Defendant was arrested and cautioned. Under caution, she claimed that she bought the dangerous drugs for reselling at HK$500 per 100 grammes. 

5.  In the subsequent video-recorded interview, under caution, she made further admissions that she was recruited by a person known as @KK about 2 months ago through a drug trafficker known as @Fat Tong, from whom the defendant had bought dangerous drugs for 20 years. She had not met @KK in person before.  She communicated with @KK via Telegram.  Upon receiving instructions from @KK, she would pick up the dangerous drugs and keep the drugs at Location 1 for @KK and upon instruction, she would deliver the required quantity to the courier of @KK. She obtained the suspected dangerous drugs from a male in a shopping mall in Mongkok 2 days before she was arrested and the suspected dangerous drugs included ketamine, cocaine and heroin etc., She went on to explain the words written on the packages of the plastic bags and the usage of the packing paraphernalia.  She also confirmed that the notebook seized by the police contained details of the trafficking activities including location, time and portion delivered.  She also used the seized mobile phone to communicate with @KK and she also explained the conversation history between @Fat Tong and herself concerning the number of grammes of dangerous drugs and the money that she received in the drug trafficking activities.

6.  The suspected dangerous drugs seized form Location 1 by the police were sent for examination. They were confirmed to be dangerous drugs and the total quantities in this case are:

(1)  210.06 grammes of ketamine;

(2)  6.25 grammes of methamphetamine hydrochloride or what is more commonly known as “Ice”; and

(3)  18.69 grammes of cocaine; and 130 grammes of heroin.

7.  The estimated street value of all the drugs seized was approximately HK$378,397. 

8.  When the defendant pleaded guilty, she admitted that she possessed the drugs for the purpose of unlawful trafficking. In mitigation, Ms Cindy Lee has said all she can say on behalf of the defendant. 

Background and Criminal Records

9.  Defendant was born in Hong Kong and is now 37 years old.  She has a form 5 education level. She was unemployed at the time of the offence. The defendant has 4 previous records involving 5 drug-related offences with 2 similar records of trafficking in dangerous drug in 2008 and 2018 for which she was sentenced to 28 months’s imprisonment and 3 years and 8 months’ imprisonment respectively. She was discharged from prison in August 2019. The defendant was married but separated. Later on she met a Mr Leung and they lived together and have a son now aged 10. Her mother is 67 and works as a cleaning worker.  Before her arrest, the defendant lived with her son and mother at location 1 and her father before his arrest. 

10.  I have seen the letter from the defendant who is very remorseful.  And she has promised to better herself by self-studying whilst serving the sentence and she was encouraged to get a job as a care-worker in the elderly home. I have a letter from her husband, Mr Leung, who is taking some responsibilities for not caring enough for his wife. I also have a letter from the defendant’s mother, the voluntary worker in prison, Madam Ho and of course, her son. I have taken into account all they have had to say for and on behalf of the defendant. All ask for mercy and leniency.

Consideration

11.  Trafficking in dangerous drugs is a very serious offence.  On conviction on indictment, a person is liable to a fine of HK$5 million and to life imprisonment.

12.  The Court of Appeal has repeatedly stressed that the court cannot accept economic reasons for committing crime and family circumstances virtually play no part in mitigation in serious offence such as the present.

13.  I have considered the approach to sentencing those trafficking in dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority.

14.  I am most grateful to both the prosecution and the defence for their assistance with calculating sentence in this case concerning such a large quantity of different types of drugs.

15.  According to Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak-ming [1990] HKCU 399, the sentence for trafficking between 50-200 grammes of heroin/cocaine would be 8-12 years’ imprisonment whereas in the case of Secretary for Justice v Hii Siew-cheng [2009] 1 HKLRD 1, it was held that a sentence for trafficking between 50-300 grammes of ketamine would be 6-9 years imprisonment. Further, it was held in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that the starting point for trafficking in up to 10 grammes of Ice is 3 to 7 years’ imprisonment. 

16.  There are four types of drugs for unlawful trafficking in this case that I will take into account: heroin, cocaine, Ice and ketamine. There are two approaches to sentencing in this situation, namely, the individual approach or the combined approach. It will be sensible to take the combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the drugs.  Often, the combined approach produces the more realistic sentence. 

17.  The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drugs.  I have referred myself to the authorities: HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Chan Yuk Leong CACC 318/2013. In that last authority, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for other drugs. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test. 

18.  I have considered the starting points for the ‘Ice’, heroin, cocaine and ketamine in this case. If they were to be dealt with separately, ‘Ice’ is the more serious and more potent of the four drugs. If the individual approach was taken, the individual sentences or starting point for the four types of drugs added together would far exceed the criminality of the defendant’s crime and the combined approach is the fairest and appropriate approach here.

19.  Taking into account the separate and total quantities of dangerous drugs involved in this case as stated above and applying the calculations on a purely mathematical basis, the prosecution contends that the the starting point of sentence after trial before enhancement should be around 16 years 1 month under the “absurdity test”, 12 years 2 months under the “conversion test” and 11 years 8 months under the “ratio test”.

20.  The defence also agrees with this calculation and after consideration, I will adopt 11 years 8 months’ imprisonment as the starting point before enhancement which is most favourable to the defendant.

21.  As to the role and culpability of the defendant in this case, I accept the submission that the defendant appears to be a mere courier or store-keeper and what she told the police under caution after her arrest at location 1 about buying and reselling of the drugs was not true and was only uttered because she was nervous at the time. I will therefore take a starting point of 11 years and 8 months’ imprisonment.

22.  However, it is obvious from the defendant’s previous criminal records that she is a repeated offender in drug trafficking and she is seemingly undeterred by her previous imprisonment terms. In my judgment, an enhancement of at least 12 months’ imprisonment is necessary in order to have a deterrent effect on the defendant and the others. As a result, the starting point is therefore increased to 12 years and 8 months’ imprisonment.

23.  Finally, as there are a cocktail of four different drugs in this case, this by itself is already an aggravating factor so the starting point has to further be increased by 4 months.

24.  The total starting point after the enhancement is therefore 13 years’ imprisonment.

25.  As for mitigating factor, Ms Lee relies on self-consumption, stating that the defendant is herself a drug addict and that she intended to keep one plastic bag containing Ice for her-own–self consumption.  In support, Ms Lee also points to defendant’s previous records and her positive urine test at the Tai Lam centre for women. Ms Lee however accepts that such amount does not amount to ‘significant portion’ for self- consumption and it was only “Ice”. As it is, the discount on self-consumption should normally be given if the court is satisfied that a significant portion of the dangerous drug is indeed for self-consumption but I am still prepare to exercise my discretion and to reduce the starting point by 3 months on this account.

26.  In the end, after taking into account the aggravating and mitigating factors into consideration, the final starting point after adjustment should be 12 years’ and 9 months’ imprisonment.

27.  The defendant has pleaded guilty at the earliest opportunity and is entitled to a full one-third discount. After the full discount is applied, I sentence the defendant to 8 years and 6 months’ imprisonment. I have also taken into consideration the sixth and final step of the Herry Jane Yusuph authority and I am of the view that the final sentence is still a fair, just and balanced sentence.