HKSAR v. LEE KA WAI

HCCC 242/2019

[2019] HKCFI 3027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 242 OF 2019

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

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COURT:

Defendant, this is the sentence and the reasons for the sentence that I am going to impose on you.

The defendant in this matter was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It is alleged that she on 13 June 2018 at Mong Kok East Station of East Rail Line, Mong Kok, unlawfully trafficked in a dangerous drug, namely 13.1 grammes of a crystalline solid containing 11.1 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

She initially pleaded not guilty to the charge and was committed on 15 July 2018 to the Court of First Instance for trial. She maintained that plea of not guilty at the case management hearing on 27 September 2019, whereupon the case was adjourned to 18 November 2019 for trial with seven days reserved, the trial date being fixed on 11 September 2019. It was indicated on behalf of the defendant at the case management hearing that the defendant will challenge the voluntariness of her cautioned statements made verbally at the scene as well as during the video-recorded interview.

Shortly before the scheduled trial, on Thursday 14 November, the defendant through her counsel, indicated to the court that she intended to plead guilty to the charge of trafficking in a dangerous drug. The matter was then adjourned to today for that plea to be confirmed and tendered and for the admission to the Summary of Facts by the defendant.

Mitigation was advanced on her behalf and it now comes for me to sentence her. The facts of the case as agreed by the defendant are as follows. At around 8.02 pm of 13 June 2018, the defendant was standing with a man near Exit C inside the Mong Kok East MTR Station. They were stopped and searched by the police officers. Nothing illegal was found on the man. As for the defendant herself, the police officers found a resealable plastic bag wrapped by a tissue paper inside the black handbag carried by her. Inside that resealable plastic bag, there was another transparent plastic bag wrapped again by a tissue paper. The dangerous drug ‘Ice’ as particularised in the charge was found inside the transparent plastic bag.

The defendant was arrested for trafficking in dangerous drugs and under caution, she admitted that she was carrying the ‘Ice’ for someone else.

During subsequent video-recorded interview, the defendant said under caution that she had just purchased the ‘Ice’ at $4,500 and that she was going to sell it in the New Territories for $5,500.

Upon analysis by the Government Chemist, the dangerous drug was found to be 13.1 grammes of a crystalline solid containing 11.1 grammes of methamphetamine hydrochloride. The estimated street value of the drug was about $6,956 at the time of the offence.

Defendant’s personal background

I now turn to the defendant’s personal background. According to her antecedents statement and as submitted by her counsel in mitigation, the defendant is aged 42 years old and educated to Form 5 in secondary school. She has no contact with her family members and she does not have any fixed place of residence. Prior to her arrest for this case, she had worked for a short while as a sales assistant, and then resorted to prostitution to make a living. She did not rely on any social assistance and she was a drug addict, having a long history in drug abuse.

The defendant has a string of previous criminal convictions, 18 in total, most of which were drug-related, including ten for possession of dangerous drugs and two for trafficking in dangerous drugs. Her first conviction was in March 1995 for soliciting for an immoral purpose, for which offence she was sentenced to Drug Addiction Treatment Centre. She had been to the Drug Addiction Treatment Centre for quite a few times, and in May 2012, she was convicted of trafficking in dangerous drugs in a High Court case and she was sentenced to 5 years 9 months’ imprisonment for that case. After her release from prison for that High Court matter, she committed further offences of possession of dangerous drugs and was sentenced in May and November 2017 to terms of imprisonment of 3 months and 12 months respectively. As her counsel has accepted, she committed the present offence on 13 June 2018, just five months after her release from jail for the previous conviction.

In mitigation, it is said on behalf of the defendant that on the day in question she had just bought the ‘Ice’ and was intending to sell it in the New Territories. She was arrested and under caution, she confessed and cooperated with the police officers fully and frankly, admitting why and how she was in possession of the drug. It is said on her behalf that the defendant’s method of trafficking was not organised or sophisticated in any way.

The defence relies on a copy of the Drug Addiction Treatment Centre report dated 23 November 2017 which was obtained from her last conviction in 2017 in a magistracy case. In that case, the defendant was sentenced to 12 months’ imprisonment for possessing over 13 grammes of ‘Ice’ on 27 November 2017. It is submitted that the DATC report, though obtained in 2017, supports the defendant’s claim as to her addiction and heavy usage of drugs. According to that report, the defendant has a long history of consuming various types of drugs, including ‘Ice’, the subject drug in question. It was said in that report that the defendant started her first puff of heroin in 1993, then later added midazolam, ‘Ice’ and cocaine to her drug list in around 2003 and 2004. She engaged in peddling drugs to supplement her financial income. Although the report is almost two years old, it is said on her behalf that the comments therein are still valid, and that the defendant’s drug habits did not change after her release from prison.

As regards the defendant’s financial means, it is said on her behalf that she received around $2,000 a week from each of her two boyfriends and made a small profit from her trafficking activities. Her expenses were limited, her food and board being provided by her lovers and clients, and thus she could have easily afforded to consume half of the drugs seized and sell half of it for profit.

Sentencing principle and the applicable tariff

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

Such a serious view is reflected in the maximum sentence applicable to trafficking in dangerous drugs which is one of life imprisonment on conviction on indictment, with a fine of up to $5 million. The court has also reflected these serious views in the nature of the sentences and the level of sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing trafficking drugs offences 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 ‘Ice’, the subject drug in this case.

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

According to the applicable sentencing tariffs, quantity between 10 and 70 grammes of ‘Ice’ would attract a starting point for sentence of between 7 and 11 years’ imprisonment.

The quantity of ‘Ice’ in this case is 11.1 grammes, thus a starting point towards the lower end of this bracket is appropriate. On a strict arithmetic calculation, the starting point is one of 7 years and 1 month, namely, 85 months. In that case of Tam Yi Chun, the Court of Appeal added:

“These are starting points after trial, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty. It is still for the sentencing judge to take into account, in application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences...”

The defendant claims that half of the ‘Ice’ seized from her was for her own consumption. The relevant legal principles on this issue are established.

In the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal set out the proper approach to this matter. It said at paragraph 34:

“(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 packages 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 a 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.

(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 the subsequent case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal indicated that the appropriate range of discount for such a mitigating factor, where it is said that “all or part of the dangerous drugs were for self-consumption” should be one of 10 per cent to 25 per cent discount.

“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.”

See also the case of HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, where such a broad range of 10 per cent to 25 per cent discount was confirmed to be appropriate. But the Court of Appeal in that case of Tam Ling Yuen made 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.”

In the subsequent case of HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, Zervos J (as he then was) said this at paragraphs 37 and 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.”

In the present case, counsel for the defendant, Mr Yuen, submits that there is a proper basis for the court to accept the defendant’s claim that she had half of the drugs for her own consumption. Such a claim is disputed by the prosecution. The defence did not consider it necessary to conduct a Newton hearing and the defendant chose not to give evidence in support of her claim. Instead, Mr Yuen asked the court to consider the following matters in mitigation which he said provide a basis for the court’s acceptance of the defendant’s claim of self-consumption.

Although it is an agreed fact that the defendant admitted to the police on her arrest and during the cautioned video interview that she was at the time carrying the drugs for someone else, and that she had purchased the drug at $4,500 and was going to sell it in the New Territories for $5,500, Mr Yuen explained in mitigation that the defendant was actually not asked to elaborate further during the video‑recorded interview and that she now clarifies that her case was that “what she did not sell, she would consume herself.”

Mr Yuen also seeks to rely upon expert opinion of a Dr Tse, the expert witness on daily consumption rate at the hearing today. Dr Tse’s evidence is agreed by the prosecution, and the conclusion reached by Dr Tse in his statement at paragraph 25 was read and accepted which states:

“25. Methamphetamine hydrochloride, the dangerous drug known as ICE is a highly addictive substance with strong psycho-stimulatory effect. It causes life-threatening intoxication in acute overdose and it causes psychotic illness in large proportion of long term users. The average daily dose of ICE among established abusers is in the range of 0.1 gramme to 0.5 gramme, some 10-20% heavy users may use up to 1 gramme. Self-reported daily consumption more than 1 gramme is possible but rare. Significant neuropsychiatric morbidity is expected in such ultra-heavy usage.”

The effect of that admitted expert opinion is that for heavy users in the drug ‘Ice’, daily consumption of more than 1 gramme is possible, but rare, and for some heavy users, they may use ‘Ice’ of up to 1 gramme per day.

On the basis of the defendant’s claim in mitigation that she had half of the drugs seized for her own consumption, that quantity of drugs, namely, 5.5 grammes of ‘Ice’, would have lasted her around five days.

Mr Yuen also relies on the urine test report, confirming that the defendant was tested positive for ‘Ice’ soon after her arrest. That report was produced to the court and marked for identification as MFI-1. Mr Yuen also relies upon the previous Drug Addiction Treatment Centre report obtained from her last conviction in 2017, which I mark as MFI-2. That report sets out the drug addiction history of the defendant and her background leading to her consumption of these drugs, which I take it that the prosecution is not in a position to dispute.

In the circumstances, and having considered all the materials available, including what has been advanced by Mr Yuen on the defendant’s behalf, including the quantity of drugs involved, the circumstances of the offence and the defendant’s arrest, the way in which the drugs seized were packaged, that the drugs were found on her in a public place, the explanation given by her under caution as elaborated and explained today by her counsel, the defendant’s drug addiction history indicating that she was a heavy drug user in ‘Ice’, the independent record proving that she was indeed tested positive for ‘Ice’ shortly after her arrest, as well as information about her financial means as submitted in mitigation, I am prepared to accept that a significant amount of ‘Ice’ seized was for her own consumption and it is appropriate to afford her a discount of 15 per cent for that mitigating factor.

I now turn to the mitigating factor of a late plea of guilty. The relevant legal principle was set out in the case of Ngo Van Nam, paragraph 214.

“An indication of a plea of guilty after the fixing of trial dates but before the first date of trial merits a discount in the range of 25 per cent to 20 per cent.

214, Next, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the Court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25% discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20% discount to be afforded to the defendant for a plea of guilty on the first day of trial. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”

In this regard, it is said in mitigation by Mr Yuen that the court should take into account the facts that at the case management hearing, the defence did indicate their agreement to a vast majority of the prosecution’s case, and that only a few prosecution witnesses who are police officers would be required. That said, that should be set against the indication at the case management hearing that the cautioned admissions will be contested.

Another matter that Mr Yuen raised on behalf of the accused is that by pleading guilty, albeit at a very late stage, a jury would not be required and that would save the inconvenience of potential jurors travelling to and from the courtroom, especially given the recent on‑goings in Hong Kong. I think that equally applies to the witnesses.

In the circumstances, and balancing all matters relevant, I am prepared to give a discount of 20 per cent for the late plea tendered by the defendant.

In sum, considering all the circumstances of the case, including the defendant’s background, the mitigating factors advanced on her behalf, as well as the aggravating circumstances of the defendant’s poor record, and the fact that she committed the present offence soon after her release from prison for the last conviction, I take the view that the following sentence is appropriate. The starting point adopted would be one of 85 months; i.e. 7 years 1 month. Giving a discount of roughly 15 per cent for the mitigation of significant portion of the drug being for self-consumption, as well as a 20 per cent discount for the late plea of guilty tendered, the final sentence calculated would be one of 57.8 months, which I will round off to 58 months, i.e. 4 years 10 months.

So this is the sentence that I would impose on the defendant. It is 4 years 10 months’ imprisonment.