HKSAR v. ZHANG JING

HCCC 424/2016

[2018] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 424 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Ms Zhang Jing, pleads guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The particulars of offence are that the defendant on the 24th day of May, 2016, at Flat 199, 4th Floor, Venus Industrial Building, No 45-51 Tai Lin Pai Road, Kwai Chung, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 22.52 grammes of a crystalline solid containing 22.20 grammes of methamphetamine hydrochloride, 5.18 grammes of a solid containing 4.80 grammes of cocaine and 6.03 grammes of a powder containing 2.99 grammes of ketamine.

Facts admitted

At 5.50 pm on 24 May 2016, police officers entered Flat 199, 4th Floor, Venus Industrial Building, Kwai Chung, when the defendant who was inside the premises opened the door of the unit to admit a male. A search was conducted. The police officers found on a table a pink paper box inside which there were 6 plastic bags of 22.52 grammes of a crystalline solid containing 22.2 grammes of methamphetamine hydrochloride, a plastic bag of 5.18 grammes of a solid containing 4.8 grammes of cocaine, a plastic bag of 6.03 grammes of a powder containing 2.99 grammes of ketamine, a bundle of unused plastic bags, an electronic scale and a pair of pliers. A plastic wallet containing $2,250, a mobile phone, a set of keys to the premises and a notice to tenant in the name of the defendant were also seized inside the flat.

The defendant and the male were arrested and cautioned for the offence of trafficking in dangerous drugs. The defendant said that she had bought the ‘Ice’, cocaine and ketamine for treating others and she herself also took some. The male said that he had been visiting his girlfriend and had no knowledge about the dangerous drugs.

In a video-recorded interview subsequently conducted, the defendant admitted, inter alia, that she had bought the dangerous drugs from an unknown male on 20 May 2016 in a park at Pak Tin Estate. She paid in cash of $2,500 for the ‘Ice’, $600 for the ketamine, and $4,000 for the cocaine. The dangerous drugs were for her consumption and sharing with friends at no charge. She would inhale the ketamine and ‘Ice’ by means of a bottle with water and smoked the cocaine by means of a cigarette. She was employed earning about $5,000 a month and the money seized was her salary. She rented the premises for $4,700 a month. The resealable plastic bags were for storing accessories. The pair of pliers were for fixing electronic appliances, while the electronic scale were for weighing the dangerous drugs purchased.

The estimated street value of the ‘Ice’ was $6,801, the cocaine, $5,496 and the ketamine, $790.

On admission to the Correctional Services Department, urine test of the defendant was conducted on 26 May 2016 and the result is that it was positive to amphetamine, but negative to opiate, cannabinoids, benzodiazepines and cocaine.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is aged 40. She was brought up in China in a single-parent family and was educated up to secondary school level. She moved to Hong Kong in 2006 after marriage. Counsel for the defendant submits to court mitigation letters written by the defendant and her parents. The defendant states in the letter that she did not get along well with her husband and she mingled with people who were drug addicts. She started to abuse dangerous drugs to ease the pressure of her unhappy marriage. Her husband has now passed away. Her ailing father who had undergone an operation for his colon cancer has come to Hong Kong to support her. Her mother suffers from illness of the vertebrae column. The defendant asks for leniency of the court and promises not to offend again.

The parents in the letter ask for leniency of the court so that the defendant can be released earlier to look after them. Counsel for the defence also submits to court the medical certificates of the defendant's parents. She tells the court that the defendant has come from a decent family and her father engaged in ship repair business from 2013 to 2017. She submits to court the relevant licence and tax registration certificate.

According to the counsel, the defendant, apart from working as a part-time clerk earning about $6,000 a month, also worked part-time for a fruit store. The counsel submits a letter of the proprietor of the store as proof. She points out that the husband of the defendant had also given money to the defendant before his death.

The counsel emphasises that the defendant pleads guilty to the offence and for the reason that it has not been entered timely, she asks for a 20 per cent discount of sentence for the defendant's guilty plea. She also produces to court a letter of the Department of Health showing that the defendant has registered as an organ donor.

She cites a number of authorities to the court which the court will deal with in due course. She asks the court to adopt a combined approach in dealing with the different types of dangerous drugs involved in this case by adding the drugs together to arrive at a starting point. She urges the court to adopt a starting point of 8 years and 4 months imprisonment.

Sentence

According to the sentencing guidelines set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for trafficking in 10 to 70 grammes of ‘Ice’ is 7 to 11 years imprisonment. The amount of ‘Ice’ involved in this case is 22.2 grammes and the starting point for ‘Ice’ alone is about 7 years 9 months imprisonment.

For trafficking in the amount of 4.8 grammes of cocaine involved in this case, the starting point, based on the guidelines laid down in AG v Rojas [1994] 1 HKC 342, is about 3 years 5 months imprisonment.

As for the amount of 2.99 grammes of ketamine, the starting point is about 2 years 5 months imprisonment, according to the case of SJ v Hii Siew Cheng & Anor [2008] 3 HKC 323.

As this case involves 3 types of dangerous drugs, the court is of the view that it is fair and just to adopt the combined approach in sentencing as suggested by the defence counsel.

As compared to ‘Ice’, the amounts of cocaine and ketamine are relatively small, and when the latter two are converted into equivalent amounts of ‘Ice’ by virtue of the starting point, it was, respectively, one gramme, and less than one gramme of ‘Ice’. With these amounts of ‘Ice’ added to the 22.2 grammes of ‘Ice’ in this case, the starting point is a little bit more than 7 years 10 months imprisonment. This is based on the conversion test as explained in HKSAR v Chan Yuk Leong CACC 318/2013.

The method of adding all the dangerous drugs together, as suggested by the defence counsel to arrive at a starting point is not fair because ketamine and cocaine carry lesser sentences. Using the ratio tests as used in the case of HKSAR v Yau Ka Ming CACC 144/2013 is also not just as the starting point arrived at is lower than the starting point of the ‘Ice’ alone. The court, accordingly, adopts the conversion test and takes 7 years 10 months imprisonment as the starting point for this case.

The defendant claims that part of the dangerous drugs was for her own consumption. In the case of HKSAR v Tam Ling Yuen CACC 159/2015, it was reiterated that according to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the element of self-consumption in a case of trafficking in dangerous drugs would be relevant to sentence only when the court accepts that a significant proportion of the dangerous drugs being trafficked was for self-consumption.

Considering the financial conditions of the defendant and her claim that she had been providing dangerous drugs to her friends free of charge, the court accepts that a small portion of the dangerous drugs was for the defendant's own consumption, but not a significant proportion as required under the authorities for the purpose of mitigation. When the initial view of the court is made known to the defence, the defence chooses not to take the matter any further, but to rely only on the submissions of the counsel of the defence made to the court. Having considered the whole circumstances, the court is of the view that no discount is justified in this element of mitigation.

This case was committed to High Court for trial after the decision of the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, regarding discounts to be given for a plea of guilty at different stages. This case was set down in the running list of High Court of March 2017, but on the day of the pre-trial review in February 2017, the defendant indicated her desire to engage a private lawyer and discharge Legal Aid. The case was then put back on the fixture list and a trial date was fixed. The defendant indicated that she would plead guilty before the pre-trial review to be held on 6 November 2017. Under such circumstances, the court is of the view that the amount of discount for the defendant's plea of guilty is about 20 per cent. Taking this and all the mitigating factors into account, the court sentences the defendant to 6 years imprisonment.