HKSAR v. WONG KAM YAN

HCCC 63/2018

[2018] HKCFI 2797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 63 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Ms Wong, the defendant is charged with two counts of trafficking in a dangerous drug. Charge 1 related to 13.3 grammes of a crystalline solid containing 12 grammes of methamphetamine hydrochloride. Charge 2 related to 6.47 grammes of a solid containing 5.87 grammes of methamphetamine hydrochloride commonly known as ‘Ice’. She pleaded not guilty but reversed her plea after the voir dire procedure and the admission of her verbal admission and post-recorded statement.

The allegation which the prosecution made against the defendant is simple, straightforward and expanded upon by witness’s evidence. On 6 July 2017, a team of police officer from Sau Mau Ping Station had obtained a search warrant for Room 1509, Sau Fai House, Sau Mau Ping Estate. It was obtained on the basis that the police had their suspicions that there was drug trafficking activity or dangerous drugs within the premises. The police did not immediately go to those premises but maintained observation points on the street level near Sau Fai House. They arrived at the estate at about 2.45 pm on 6 July to mount this anti dangerous drug operation.

The first person apprehended was the registered tenant of Room 1509, Mr Chong Wing-hoi. He was spotted about 11.37 pm outside Sau Fai House and apprehended. He had no drugs on his person so he was taken back to Room 1509 for the police to execute their search warrant and a house search. He arrived home at one minute past midnight. The defendant was spotted by PC11174 at five minutes past midnight just outside Sau Fai House. She was walking very quickly and looking behind her which made PW1, that officer, very suspicious. He approached her and intercepted her. He noticed a trouser pocket bulging and asked her to empty it. She took out two transparent plastic bags containing ‘Ice’. One was bigger than the other. The smaller packet contained almost exactly half the amount of drugs in the bigger packet.

The officer arrested the defendant for trafficking dangerous drugs and cautioned her. Under caution she admitted that she intended to sell the bigger bag to make some money and to consume the smaller bag herself. Other than a mobile phone and some personal belongings the officer found no other suspicious items on the defendant. She was then taken back to her home premises which she declared to be Room 1509, the same premises as Mr Chong’s. She identifies him as her sworn father. He is 77 years old, the defendant is 37 years old. His girlfriend was at home when the police arrived, she is 72 years old. The Premises was essentially a studio room with no bedrooms but a bed in the living room. There the police found no other suspicious items such as dangerous drugs or drug-related paraphernalia. Not even an ‘Ice’ pipe or bottle.

After the house search, only the defendant was taken to the police station. There, a post-recorded statement was made in the arresting police officer’s notebook, at 2.15 am. The defendant signed it and I found after the voir dire that she made this record voluntarily and if she had uttered the verbal admission it was also made voluntarily.

The defendant had elected to give evidence in the voir dire proceedings and gave a reason for why she was downstairs at that time and stopped not long after Mr Chong. She was at home alone earlier and had seen Mr Chong in the CCTV camera footage which captured the main entrance of Sau Fai House. Apparently live CCTV footage of the entrance and lifts can be seen on a designated television channel. She saw that Mr Chong was surrounded by people at the entrance and knew they were police officers coming to her home. She immediately left Room 1509 and took the stairs down to leave the building so she could avoid the police.

Her reason for leaving was because she was in breach of terms relating to her recent release from the drug addiction treatment centre. She was in breach of her supervision order. Therefore, she was subject to a recall order meaning she was to be returned to custody. As she was a wanted person she believed that the police would find her in Room 1509 and subsequently arrest her. Her evidence was that the ‘Ice’ was found on Mr Chong and not her. She challenged the voir dire on the basis that she never uttered the admission nor did she know the contents of the post-recorded statement in PW1’s notebook when she signed it.

I found the prosecution had proved beyond doubt the voluntariness of the verbal admission if it was made and the statement recorded not long after. The admissibility was determined by the credibility of those who gave evidence. The defendant has, after that ruling, decided to plead guilty to the two charges. She faced two charges of trafficking despite the ‘Ice’ of both charges being found in her pocket at the same time. Clearly the prosecution took into account the authority of HKSAR v Gurung Laxman, CACC 385/2015 and laid two charges because of her admission after arrest. That is the smaller bag was for her own consumption.

I have heard mitigation. The defendant, as I have said, is now 37 years old. She was born in Hong Kong. She was educated up to Form 3 level and at the time of her arrest, she says she was working as a waitress earning about $2,000 per month. She is married but lost contact with her husband some five years ago. She has also lost contact with her mother and siblings.

She said when she gave evidence during the voir dire that at the time of her arrest she was also living in Wong Tai Sin district. The actual registered tenant, as I have said, is Mr Chong of Room 1509 who lived there with his girlfriend as well.

The defendant has previous convictions for offences of dishonesty and possession of dangerous drugs. She has five convictions obtained over two court appearances and in December 2015 she was sentenced to a drug addiction treatment centre order. When released, as is usual, she was subject to a supervision order but according to her record she was in breach of that order and wanted on 9 June 2017, a month before her arrest for this offence. I have no details of that breach.

Mr Cheung has said all he can say on behalf of the defendant in mitigation. Her abuse of ‘Ice’ began in 2000, 18 years ago and when arrested she was consuming it three to four times a day, apparently in Room 1509. There were no ‘Ice’ bottles or pipes found by the police because she would make disposable ones every time she inhaled ‘Ice’ and throw it away afterwards.

Mr Cheung has put forward in mitigation that a significant portion of the drugs of Charge 2 were for her own consumption. He has instructions that she earned $2,000 per month and was able to buy those drugs of Charges 1 and 2 a couple of days before her arrest for $4,000. The money came from her savings and pocket money given to her by her sworn father.

I know from the Summary of Facts agreed by the defendant that the average retail price on the material day for all of that ‘Ice’ was $8,778.88.

Mr Cheung relies on her positive urine test, it was positive for ‘Ice’, her admission under caution and her previous two convictions for possession of dangerous drugs to submit a significant portion of the smaller bag of ‘Ice’ was for her own consumption. Prosecution does not accept mitigation that all or a significant amount of the ‘Ice’ of Charge 2 was for self-consumption, Mr Lau has highlighted the fact that no ‘Ice’ inhaling paraphernalia was found in the premises she called home.

I indicated to Mr Cheung that I was not convinced on his instructions and submissions in mitigation that a substantial portion of the smaller bag was for her own consumption. I was unconvinced she could afford to buy that much ‘Ice’ nor was I convinced that she would get a discount of over 50 per cent from the retail price by buying that amount. I find it difficult to believe she would make an ‘Ice’ bottle or pipe three or four times a day and then dispose of it. In addition, I note that the drugs were packed in a single bag and almost exactly half the weight of the single bag of ‘Ice’ in Charge 1, that bag she admits she would sell.

The defendant however elected not to give evidence in a Newton hearing despite my indication that I was not convinced. I found what the defendant relied on were bare assertions. A sentencing court should be slow to accept a bare assertion unsupported by confirmatory evidence. Therefore, I reject the mitigation that a substantial part of the smaller bag was for self-consumption.

The tariff guidelines for trafficking ‘Ice’ now come from HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the Court of Appeal have said that the starting point for trafficking up to 10 grammes is between 3 to 7 years’ imprisonment and the starting point for trafficking between 10 to 70 grammes is 7 to 11 years’ imprisonment. Here, if the total amount of ‘Ice’ in Charges 1 and 2 are considered 17.87 grammes, mathematically speaking the starting point would be 7 years and 6 months’ imprisonment. In fact, the starting point for the 12 grammes of Charge 1 alone would be 7 years and 1 month.

The defendant has pleaded guilty to trafficking that amount in Charge 1. She did put forward in mitigation and submission that the drugs of Charge 2 were mainly for her own consumption even though she pleaded to a trafficking charge. As I have said above, I reject that mitigation.

The defendant has changed her plea after the voir dire, therefore will not be eligible for a one-third discount according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. The Court of Appeal said at paragraph 215 that:

“The discount to be afforded to a defendant who pleads guilty after arraignment but during the trial itself would usually be less than the 20 per cent afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. Often it will follow the holding of a voir dire.”

The Court of Appeal has said that this is subject to the overriding discretion of the judge in sentencing. Mr Cheung had submitted the defendant should be eligible for at least a 20 per cent discount. He has asked me to consider the circumstances in which the plea was tendered and how the voir dire was conducted. He has asked me to consider how the verbal admission and the post-recorded statements were challenged. I will take into account how the police witnesses were cross-examined. Since it is in my overriding discretion, the defence have urge for a 20 per cent discount.

I have taken into account what the Court of Appeal said in Ngo Van Nam, mitigation put forward and the voir dire proceedings. I will exercise my discretion and find a 20 per cent discount applicable to the defendant’s pleas.

Since I have rejected the defendant’s submission that part of the drugs were for her own consumption, I will add the drugs of both charges together and consider a global starting point. The amount of drugs, 17.87 grammes of ‘Ice’ as I have said earlier, mathematically attract a starting point of 7 years and 6 months. I have taken into account the defendant’s mitigation, the facts of the case as well as the fact she has previous, for possession of drugs, but none for trafficking.

For that reason, I will take a slightly lower starting point of 7 years and 3 months which applies to both charges. After I apply a discount of 20 per cent and round it up, the defendant is sentenced to 5 years and 10 months for each charge.

Therefore, for Charge 1, the defendant is sentenced to 5 years and 10 months. For Charge 2, the defendant is sentenced to 5 years and 10 months, both charges to be served concurrently. A total of 5 years and 10 months.