HKSAR v. IP YUEN MING

HCCC 306/2019

[2020] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 306 OF 2019

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

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COURT:

The defendant in this matter was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It is alleged that he, on 26 October 2018, at Room B3, Flat B, 2nd Floor, No 145 Ki Lung Street, Sham Shui Po, unlawfully trafficked in a dangerous drug, namely 98.7 grammes of a crystalline solid containing 96.9 grammes of methamphetamine hydrochloride (commonly known as ICE).

He pleaded guilty to the charge before the magistrate and was committed on 9 September 2019 to the Court of First Instance for sentence.

He comes before me today for sentence, having confirmed his plea and admission of the Summary of Facts.

Facts of the case

The facts as agreed by the defendant are as follows:

On 25 October 2018, equipped with a search warrant, a team of police officers conducted observations on the 2nd Floor, No 145 Ki Lung Street, Sham Shui Po.

At around 1.48 am of 26 October 2018, the officers spotted the defendant and another man, surnamed Tran, appearing outside Flat B of the 2nd Floor. The defendant was observed to be acting furtively and looking around constantly. The officers at once approached the two of them, who upon seeing the police immediately rushed into the flat and locked the door.

The police officers broke open the doors and gained entry into one of the rooms (Room B3) of the flat. The defendant was then inside the toilet whilst Tran, the other man, was in the living room.

A search was then conducted of the room. In a paper bag, the “Sa Sa” paper bag on the table, the police found four resealable plastic bags containing a total of 70.2 grammes of a crystalline solid containing 70.1 grammes of ‘Ice’, one pile of empty resealable plastic bags and one electronic scale. The defendant was immediately arrested and cautioned, upon which he said to the police that some of the “pork” seized was for his own self-consumption, while some was for his friends. He added that the other man, Tran, had nothing to do with it.

Upon further search, the police found inside the drawers in the living room a plastic box containing three resealable plastic bags which were later confirmed to contain a total of 28.5 grammes of a crystalline solid containing 26.8 grammes of ‘Ice’. Upon further arrest and caution for this extra lot of drugs found, the defendant repeated the claim that some of the “pork” seized was for his own consumption and some was for his friends.

The total quantity of ‘Ice’ seized in the room was thus 96.9 grammes in terms of narcotic content of ‘Ice’ as particularised in the charge.

At the time of his arrest, the defendant had in his possession keys to the room, two mobile phones and HK$70,010 cash.

In a subsequent video recorded interview, the defendant admitted under caution that the “pork” he was referring to was the dangerous drug ‘Ice’; that he had purchased the whole lot of dangerous drugs seized in the room from a man called “Ah Man” at $21,000 two days before his arrest in a park on Maple Street. He said he consumed about 4 to 5 grammes of ‘Ice’ per day with an ‘Ice’ bottle and that he would consume all seven packets of ‘Ice’ seized. He told the police that the tenant of the room (Room B3) was a lady called Li Xia, who was his girlfriend, but that Li had never been to the room herself. One of the mobile phones seized belonged to Li and he kept it intending to take it to repair. He added that he would share the ‘Ice’ with his friend “Wah Jai”, although he did not have Wah Jai’s contact. He had not yet shared any of the drugs seized. As regards Tran, the other man, the defendant told the police that he had run into Tran on his way home and invited the latter to his room and that Tran did not know about the ‘Ice’ in the room.

The estimated street value of the drug was about $55,667 at the time.

By pleading guilty and admitting the Summary of Facts, the defendant now accepts that he possessed the quantity of drugs seized for the purpose of unlawful trafficking.

The defendant’s background

According to his antecedents statement and as supplemented by his counsel, Mr Kwan, in mitigation, the defendant is now aged 48 years old, approaching 49, and was educated to Form 2. He was born in China and came to Hong Kong in around 1986 to reunite with his father. He got married subsequently and has a daughter, who is now 18 years old and has just been admitted to the Chinese University majoring in Nursing. Before his arrest, the defendant worked as a cook in a Chinese restaurant earning around $23,000 to $28,000 a month. His wife works part-time as a waitress in a tea restaurant.

The defendant claims to be a drug addict in ‘Ice’ since he was 45 years old; that is, around three years ago.

He has one previous criminal conviction for shoplifting in 2004 for which he was conditionally discharged. That conviction was 15 years ago and is unrelated to the type of offence of which the defendant is now convicted. It is said on his behalf that during the over 30 years of his stay in Hong Kong, he managed to stay out of trouble except for that minor offence of shoplifting in 2004, until the present offence of drug trafficking.

Mitigation

In mitigation, two letters were submitted to the court - one from the defendant himself, the other from his daughter - pleading for leniency. It was said that the defendant was used by others to commit the present offence trying to earn more money for the family and that he is now very remorseful, regretting what he had done.

Concerning the offence in question, it is contended on his behalf that some of the ‘Ice’ found was for his own consumption and that he would share some of the drugs with somebody else. He now admits that he was a drug addict consuming approximately 1 gramme of ‘Ice’ per day. His drug addiction was independently confirmed by the urine test conducted two days after his arrest, in which he was tested positive of amphetamine upon admission to the Lai Chi Kok Remand Centre.

The defendant claims that about 30 grammes of ‘Ice’ (namely roughly the weight of the three packets of ‘Ice’ found inside the plastic box in a drawer in the living room) was for his self-use. By reference to the photographs taken at the scene, his counsel, Mr Kwan, draws a distinction between this three packets of ‘Ice’, which were found inside the plastic box in the drawer together with an electronic scale, but with no empty resealable plastic bags on the one hand, and the four packets of ‘Ice’ found inside the Sa Sa paper bag placed openly on the table in the living room (in which a scale and a pile of empty plastic bags were also found) on the other hand. Mr Kwan also draws reference to various entries in the video recorded interview in which the defendant described how he had been consuming the drug, ‘Ice’.

As regards the defendant’s financial means, it is said that he worked as a cook earning $23,000 to $28,000 a month and had the ability to fund his drug consumption for that quantity.

Sentencing tariffs

The courts of Hong Kong have taken a severe view of drug trafficking, particularly in relation to drugs such as ‘Ice’. This is because these types of drugs are highly addictive and have serious consequences for both the individuals and community at large.

Such a serious view is reflected in the maximum sentence provided for the offence of trafficking in dangerous drugs under section 4 of the ordinance, which is one of life imprisonment and $5 million fine upon conviction on indictment. It is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.

The tariffs that is applicable to trafficking in ‘Ice’ is set out in the Court of Appeal’s decision in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

According to the applicable sentencing tariffs, quantities between 70 grammes and 300 grammes of ‘Ice’ would attract a starting point for sentence of between 11 and 15 years’ imprisonment.

The quantity of ‘Ice’ in this case is 96.9 grammes. Thus, on a pure mathematical approach, the starting point would be approximately 11½ years.

Significant amount of dangerous drug for self-consumption?

The defendant claims that a significant portion of the ‘Ice’ seized was for his own consumption. The relevant legal principles on this issue are well established. See HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, HKSAR v Choi Chun Wo [2018] 5 HKLRD 717 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.

In Wong Suet Hau, the Court of Appeal set out the proper approach to this issue in the judgment of Stuart-Moore VP (as he then was) at paragraph 34 on pages 78 to 80 of the judgment:

“(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold 2002, para. 5-20).

(4) Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see: HKSAR v Lam Wai-ip CACC 214/1997, unreported) and ecstacy (see: HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 376).

(5) Where the mitigation has necessitated the holding of a Newton enquiry after which the mitigation is rejected, the court will be entitled to reduce by an amount appropriate to the circumstances, the discount normally given following a plea of guilty (see: R v Lee Chiu-pang [1995] 2 HKC 523 at 526).

(6) Sentencers should remember as to ‘trafficking’ itself, that its gravity is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction (see: R v Lau Tak-ming and Anor [1990] 2 HKLR 370 at 385).”

In Chow Chun Sang, the Court of Appeal indicated that the appropriate range of discount where “all or part of the dangerous drugs were for self-consumption” should be 10 per cent to 20 per cent. In the judgment of Yeung VP, at paragraphs 19 and 20:

“19. …in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.

20. …possession of “ice” for personal consumption is also an offence in itself. Furthermore, [the courts] must not overlook the latent risk that the portion of the drug intended for [D’s] own consumption may be given or sent to others.”

In Tam Ling Yuen, the Court of Appeal confirmed the appropriateness of such a broad range of 10 per cent to 25 per cent discount, but went on to make it clear that such a discount of sentence:

“was to be afforded only where the court accepted that a ‘significant proportion’ of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption.”

As to what amount to ‘significant proportion’, the Court of Appeal explained in Choi Chun Wo in the judgment of Zervos J (as he then was) at paragraphs 37 to 38:

“37. The threshold test for self-consumption is whether “all or significant proportion” of the drugs was intended by the defendant for his own consumption. …, in cases where self-consumption is claimed, it will require the sentencing court to determine whether the threshold of “significant proportion” has been met. What is a “significant proportion” will depend on the particular facts and circumstances of the case. Obviously, the quantities of the drugs claimed to be for self-consumption and the total quantity of drugs involved, will have a critical bearing on whether the threshold has been met. See HKSAR v Yeung Shek Yung, CACC 314/2016, 3 July 2017, unreported, paragraph 18. There is the risk of abuse in this avenue of mitigation, and the primary task of the sentencing court is to determine where the truth lies in a claim of self-consumption on a proper factual and evidential basis.

38. We also add that just because the threshold has been met, does not necessarily entitle a defendant to a range of discount from his sentence between 10% and 25%. This was made clear in Wong Suet Hau where it was noted that possession of the drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others which may well offset much of the practical value of the mitigation that some of the drugs were for the defendant’s own consumption.”

The same approach and guiding principles were reiterated by the Court of Appeal in its subsequent judgment in Cheung Wai Man, per Zervos JA at paragraphs 50 to 54.

In the present case, Mr Kwan submits that there is a proper basis for the court to accept the defendant’s claim that he had 30 grammes of the drugs for his own consumption. He submits that it is not necessary to conduct a Newton hearing and invites the court to consider the following matters in mitigation in support of the defendant’s claim by reference to the various factors set out by the Court of Appeal in Wong Suet Hau.

(a) The quantity and value of drugs - The defendant claims that 30 grammes out of 96.9 grammes of ‘Ice’ was for his own use. That would make up approximately $21,600 worth of the drugs;

(b) The drugs were in seven packets in two separate lots - one in the Sa Sa bag and the other inside the plastic box in the drawer;

(c) The drugs were found inside the premises in which the defendant resided, not in a public place;

(d) Whilst a pile of empty plastic bags and an electronic scale were found inside the Sa Sa paper bag, no such empty plastic bags were found inside the plastic box in the drawer in which the three packets for the defendant’s own consumption were kept. When asked, Mr Kwan told me that the ‘Ice’ bottle that had been used by the defendant was thrown away before the incident, which explained why no paraphernalia for consuming ‘Ice’ was found;

(e) As confirmed by the urine test, the defendant was a drug addict in ‘Ice’;

(f) The explanation given by the defendant under caution was partly consistent with his claim for self-consumption;

(g) The defendant worked as a cook earning up to $28,000 a month for over 20 years and thus had the means to fund his own drug addiction;

(h) As regards his criminal record, he had only a minor theft conviction a long time ago, which is wholly unrelated to drugs.

Taking into account all the above circumstances and the relevant principles and approach set out in the authorities, in particular the case of Cheung Wai Man, I accept that a significant amount of ‘Ice’ was indeed for the defendant’s own consumption and that he can avail himself of an appropriate discount of 10 per cent for that mitigating factor. In this regard, I am satisfied that the proportion of the drugs to be consumed by the defendant is of a level of significance that is commensurate with that percentage of discount within the range (see paragraph 60 of Cheung Wai Man).

Sentence imposed

Considering all the circumstances of the case, including the defendant’s background, the mitigating factors advanced, I take the view that the following sentence is appropriate.

I adopt a starting point for sentence of 11½ years, which is 138 months. I give 10 per cent discount for the mitigation that a significant portion of the drugs were for self-consumption. That would bring the sentence down to 124 months roughly.

The defendant pleaded guilty at the committal stage and for that he is entitled to the full one-third discount for his early plea (see HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 at paragraph 211). That would bring the sentence further down to 82 months.

There being no other mitigating factors warranting further discount, the sentence I impose on the defendant is 82 months, that is, 6 years and 10 months.