HKSAR v. HO WAN SZE, KITTY

HCCC 344/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 344 OF 2014

-----------------

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

COURT: Defendant, you have pleaded guilty to four separate charges before this court, all those charges relate to dangerous drugs.

The first count is a count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

You have admitted that on 4 December 2013 at Pedder Street near Queen’s Road Central, you, together with an unknown male, unlawfully trafficked in 0.84 grammes of a solid containing 0.48 grammes of cocaine.

In respect of the second count, you admitted to offering to traffic in a dangerous drug, contrary to section 4(1)(b) and (3) of the same ordinance.

You admitted that on 12 December in Hong Kong you offered to traffic in 9 ounces, or 252 grammes, of ketamine.

You also admitted in the third count to trafficking in a dangerous drug on the same daythat is on 12 December outside No 9 Wo On Lane, Central, namely 1.15 grammes of a solid containing 0.61 grammes of cocaine.

In respect of the fourth count, you pleaded guilty to a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance.

You admitted on 15 January 2014 at your residence at Tung Lo Court, Tai Po Road, Sham Shui Po, you possessed 10.52 grammes of a crystalline solid containing 10.22 grammes of methamphetamine hydrochloride, 10.46 grammes of a powder containing 7.07 grammes of ketamine, 0.39 grammes of a mixture containing 0.25 grammes of heroin hydrochloride, and 0.33 grammes of herbal cannabis.

I turn now to deal with the facts in respect of the first count of trafficking in 0.48 grammes of cocaine.

On 4 December 2013, two undercover police officers, one male and one female, pretended to be patrons of a bar in Lan Kwai Fong. At about 7.20 pm, the male officer was approached by an unknown male who offered him five drops of cocaine at $1,000. The male officer indicated his interest, and the unknown male told the officer to wait at HSBC near Lan Kwai Fong at 8.30 pm, one hour later.

The two officers then went to wait outside the HSBC at the junction of Pedder Street and Queen’s Road Central. At about 8.30 pm, the defendant approached the officer and asked if he was “Ah Dee”. The defendant told the officer her name was “Kimmy”. They then walked aside and the defendant told the male officer, “Your soft drink is here”, and passed a packet into the officer’s palm. The male officer then paid her $1,000 in cash.

The two officers and the defendant then exchanged phone numbers. The packet which was passed into the male officer’s palm was subsequently found to contain five smaller plastic bags containing the drugs in Count 1.

In respect of the second count of offering to traffic in dangerous drug and the third count of trafficking in dangerous drugs, I shall deal with these facts together.

On 11 December 2013, the defendant called the female officer and said she had called her because she could not reach the male officer. She identified herself as the person who sold the cocaine to the male officer last time at Central. The defendant offered “soft drink” to the female officer, but the female officer said she was not interested. The defendant then offered “K Chai”, and the female officer said she would think about it, so the defendant said she would call her again.

The following day, 12 December, the defendant called the female officer again and offered 9 ounces, or approximately 252 grammes, of ketamine, together with five drops of cocaine, for a total sum of $13,000. The female officer indicated her interest, and they agreed to meet, together with the male officer, later that night in Central.

The two undercover officers and the defendant met at about 8.15 pm in Lan Kwai Fong. The defendant indicated that her friend would only be coming with the goods at about 10.30 pm. Whilst waiting they walked around and chatted at a bar in Wo On Lane in Central, during which time the defendant made a number of phone calls. At 11.05 pm, the male officer said he could not wait any longer, and left the bar. The defendant rushed out and apologised and said the male officer could have the five drops of “soft drink” first.

She then passed him a small metal box, and the male officer paid her $1,000. It was subsequently certified that the box contained five plastic bags containing 0.61 grammes of cocaine.

I turn now to the fourth count. On 15 January 2014, police officers intercepted the defendant at the ground floor of her building. They then brought her back to her home. Inside the flat, the defendant was searched, and a packet of “Ice” containing 0.45 grammes was found in the pocket of her trousers.

During a search of the flat, the drugs mentioned in Charge 4 were found. Also found was an inhaling device with two tubes connected to it containing liquid which was subsequently certified to be traces of methamphetamine, an electric scale, four lighters and a roll of tin foil.

The defendant was arrested for the dangerous drugs found on her person and from the flat, and under caution, she said they were intended for her own consumption.

She admitted that she had sold drugs to the undercover police officer on those two occasions for $1,000.

The street value of the drugs seized in the defendant’s home totalled $6,114.

Mr David Boyton has mitigated on behalf of the defendant. I have taken into account what he has had to say. The defendant is 34 years of age. She is married and has a daughter aged 10. She is educated up to Form 5 and worked as a dressmaker prior to her arrest. She says she has been addicted to drugs for over 10 years.

She has two previous convictions, all involving drugs. The first conviction was a conviction for possession of dangerous drugs when she was 16 years of age, for which she was sentenced to probation. In 2007 she was convicted of trafficking in dangerous drugs and was sentenced to a term of 9 years and 4 months’ imprisonment. She was detained for that offence from September 2007 to 29 June 2013, when she was released from prison.

Mr Boyton has submitted that the drugs found in the defendant’s home were all for her own consumption, and asked the court not to draw any inference that there was any risk that they would be shared with outsiders. He correctly refers to the authority of HKSAR v Mo Cho Tik for possession of dangerous drugs, where a sentence for simple possession would be between 12 months’ and 18 months’ imprisonment.

In respect of Count 2, for the charge of offering to traffic in dangerous drugs, Mr Boyton accepts the court should sentence on the principle of trafficking in that particular dangerous drug. In this case, it would be for trafficking in 252 grammes of ketamine. The sentencing guidelines for trafficking in ketamine were laid down in Secretary for Justice v Hii Siew Cheng, and the amount of 252 grammes of ketamine would fall within the fourth category of 50 to 300 grammes, warranting a starting point of 6 to 9 years’ imprisonment after trial. In respect of Counts 1 and 3, the drugs involved in those two charges are the drugs of cocaine, and the sentencing guideline case for trafficking in cocaine is laid down in R v Lau Tak Ming.

I turn first to deal with the individual sentences on Charges 1 and 3.

Charges 1 and 3 concern the drug cocaine. The total cocaine was 1.09 grammes. The appropriate starting point for trafficking in that amount of cocaine would be one of 2 years and 3 months’ imprisonment. However, giving the defendant the full credit for her plea of guilty, that would be reduced to 1 year 6 months’ imprisonment.

I must now sentence you separately for each charge. For Count 1, defendant, had you been convicted after trial, I would have taken a starting point of 2 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 1 year 4 months’ imprisonment. On Charge 3 I will adopt the same starting point of 2 years’ imprisonment, and reduce that term to 1 year 4 months’ imprisonment.

Defendant, on Charge 2, offering to traffic in 252 grammes ketamine, had you been convicted after trial, I would have taken a starting point of 8 years 3 months’ imprisonment. Giving you full credit for your plea of guilty, I reduce that term to 5 years and 6 months’ imprisonment.

On Charge 4, for the possession of dangerous drugs, I would have imposed a sentence of 15 months’ imprisonment had you been convicted after trial. That however will be reduced, giving the full credit you deserve for your plea of guilty, to one of 10 months’ imprisonment.

I order all sentences to run concurrent to each other, making a total term 5 years and 6 months’ imprisonment.

Now, let me just explain, for a matter why I have ordered the sentences to run concurrent.

What I have done is to apply the conversion test to the drugs such as cocaine and converted those drugs to ketamine. The 1.09 grammes of cocaine, in terms of sentence, would be equivalent to the 2 grammes of ketamine. That would make it 254 grammes of ketamine for the first three charges if it were to be trafficking, so there is no need to order a consecutive sentence there, because it is only 2 grammes more.

In respect of the possession of dangerous drugs, I have also converted the “Ice” as if it was the drug ketamine, and that would be approximately 134 grammes of ketamine. Plus the adddtional 0.07 grammes of ketamine in the possession charge would make about 141 grammes of ketamine. So even if say Charge 4 was of trafficking, that would be 141 grammes of ketamine, plus the 254 grammes of ketamine, which would make 395 grammes.

So if all four charges were of trafficking in ketamine, the sentence after trial would be 9 years 9 months’ imprisonment as a starting point, which after a guilty plea would be reduced to 6 years 6 months’ imprisonment. But of course charge 4 is one of simple possession only.

In those circumstances, and in following the case of HKSAR v Or Wai Tong CACC 250/2009, logically, these two offences are separate. However, if I were to impose a consecutive sentence in respect of the possession charge, that would be disproportional and would be as if I were sentencing her for trafficking for a larger amount.

In the circumstances, I order a concurrent sentence on all four charges.