HKSAR v. WONG MEI YUK

HCCC 328/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 328 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  On the first day of trial the defendant pleaded guilty to the single offence she faced of trafficking in a dangerous drug. Notification of the plea of guilty was given by letter dated 6 April 2017 from the solicitors for the defendant. 

2.  The defendant had been arrested and charged for this offence on 30 March 2015.  She admits by her plea that on that day she was trafficking in the drugs found in her possession, consisting of 53.20 grammes of a crystalline solid containing 52.70 grammes of methamphetamine hydrochloride, commonly known as Ice, and 0.41 grammes of a solid containing 0.32 grammes of cocaine. 

The history of the case

3.  I am informed that on the first mention hearing at the Magistrate’s Court on 1 April 2015, the defendant was granted bail.  Further mentions took place and her case was adjourned to 4 August 2015.  She failed to attend court on that day in breach of her conditions of bail.  She was re-arrested sometime later on 26 April 2016 and brought before the Magistrate’s Court.  Bail was refused on this occasion. 

4.  On 15 July 2016, the defendant was committed for trial in the Court of First Instance for this offence.  On 17 August 2016, the defendant’s case was fixed for a pre-trial review on 22 February 2017 and a trial on 10 April 2017 with five days set aside. 

5.  At the pre-trial review on 22 February 2017, the defendant indicated that she would contest the present offence and arrangements were made for trial. 

The agreed facts

6.  In admitting this offence, the defendant has agreed a summary of facts which can be briefly stated as follows. 

7.  On 30 March 2015, a team of police officers carried out an anti-drug operation and attended Kam Do Guest House on Nathan Road, Yau Ma Tei, Kowloon. The police executed a search warrant on the Guest House as they suspected that dangerous drug activities were being conducted there.  They ascertained that there was only one person staying at the Guest House which was the defendant who occupied Room 116.  They went to the room and told the defendant that they were police and requested that she open the door.  She did not immediately do so and they could hear movement inside the room.  They therefore used a spare key that they had obtained to enter the room.  They found the defendant in apparent state of panic, attempting to grab a plastic Ice pot that was on a table. 

8.  After a search of the room, the police found a plastic Ice pot and a tissue which had wrapped inside two resealable transparent plastic bags and three crystalline granular substances.  The police also found and seized an electronic scale and 15 daily rental receipts for the room.

9.  The two plastic bags contained 25.8 grammes of a crystalline solid containing 25.5 grammes of Ice and 27.4 grammes of a crystalline solid containing 27.2 grammes of Ice respectively.  The crystalline granular substances consisted of 0.41 grammes of a solid containing 0.32 grammes of cocaine.  The Ice pot had a small quantity of liquid containing traces of cocaine. 

10.  It is admitted that as at the time of the offence in March 2015, the street value of the Ice was $21,067 and the cocaine was $438.  It was also admitted that the quantity of Ice would be adequate for 88 to 405 days of consumption.

The defendant’s previous convictions

11.  The defendant has various previous convictions. 

12.  The first was on 23 May 2005 when she was 31 years old for a single offence of possession of a dangerous drug and a single offence of possession of a Part I poison for which she was sentenced to concurrent terms of imprisonment of 3 months. 

13.  The second was on 13 October 2012 when she was 39 years old for managing a vice establishment for which she was sentenced to 8 weeks’ imprisonment. 

14.  The third concerned her failure to surrender to custody in relation to this case.  On 8 June 2016, she was sentenced to 4 weeks’ imprisonment.  I note that this sentence was imposed and served during the period that she was on remand in custody in relation to this case which occurred when bail was refused on 26 April 2016.  The failure to surrender was a separate and distinct offence from the present offence, and accordingly the time served for the sentence on the failure to surrender should not be credited to the time served for the sentence to be imposed in relation to the present offence. 

The defendant’s mitigation

15.  In mitigation, Mr Andrew Bullett, for the defendant, has provided a very general description of the defendant’s background.  He tells me that the defendant was born in Hong Kong and is now 43 years old.  She has three siblings with whom she has a good relationship.  After she left school, she lived with a man and his children who supported her for about 10 odd years.  It appears after that she resorted to drugs and later worked at a vice establishment as evidenced by her criminal convictions.  She was married to a mainland Chinese in 2013 but soon after they separated.  More recently, she lived with a companion but that relationship came to an end.  It was then that she moved to the Guest House where she had been living for about 15 days. 

16.  Mr Bullett submits on behalf of the defendant that about a quarter of the Ice was for her self-consumption.  He says that she is not an addict but does regularly use drugs.  He submits that she bought the Ice and cocaine the day before her arrest for $4,500.  She was going to divide up the Ice into about 30 packets.  She was going to keep 7 or 8 of the packets for her own use which would last a couple of weeks. 

17.  Mr Bullett also points out that the defendant tested positive for cocaine when she was re-arrested on 26 April 2016. 

18.  It is clear from the circumstances of this case that the cocaine that was found in the defendant’s room had most likely been consumed by her.  The quantity was small and traces of cocaine were found in the Ice pot.  I am satisfied that the cocaine was for self-consumption. 

The starting point

19.  As at 9 June 2014, the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice.  The narcotic content of Ice of 52.70 grammes in the present case falls within the band of 10 to 70 grammes where the sentence after trial ranges from 7 to 11 years’ imprisonment.  For this quantity of drugs, a starting point of 9 years and 10 months’ imprisonment is adopted. 

20.  Given the relatively minor quantity of cocaine involved, and the little, if any, difference it would make to the starting point if it was added to the narcotic content of the Ice, I have for the purposes of sentencing the defendant not taken it into account.

Discounts to the starting point

21.  There are two matters that I need to address when sentencing the defendant.  They concern what, if any, discount should be given to the starting point for the defendant’s claim that a quarter of the Ice was for her self-consumption, and for her plea of guilty. 

Discount on self-consumption

22.  On the issue of self-consumption, the defendant asserted through Mr Bullett that about 25 percent of the Ice was for her own use. 

23.  Mr Jeevan Hingorani, for the prosecution, after having taken instructions, explained that the prosecution was unable to accept the claim of self-consumption of 25 percent of the Ice, because they did not know how much of the drugs, if any, the defendant would or was likely to consume.  When pressed on the issue, Mr Hingorani said that the prosecution would contest the claim and were of the view that none of the drugs were for self-consumption because at the time of the defendant’s arrest she said that she did not consume drugs.

24.  I invited Mr Bullett to address me on the issue and to point to the matters that he said supported the defendant’s contention that a quarter of the drugs were for self-consumption.  He indicated after having taken instructions that the defendant would not give or call evidence on the issue.  There were several occasions where Mr Bullett took instructions as to whether the defendant wanted to give or call evidence to make good assertions being made on her behalf. 

25.  Mr Bullett made the following points in support of the self-consumption claim:

(1) The defendant had a prior history for consuming drugs. He referred to the prior conviction in 2005 for consumption of a drug. However, that was for marijuana. He also referred to the occasion when the defendant was re-arrested on 26 April 2016, after being tested positive for cocaine. Mr Bullett accepted that there was no record of the defendant having consumed Ice.

(2) When the defendant was arrested on 30 March 2015, she was in possession of an Ice pot that had traces of cocaine. Mr Bullett submits that it was a vessel that could also be used for the consumption of Ice.

(3) At page 153 of the committal bundle (English translation at page 150) a document was seized from the defendant’s room with handwriting on it which according to the defendant made reference to her consumption of unspecified drugs.

(4) The drugs were found in the room where the defendant was living and not on her outside the Guest House or en route for delivery.

26.  Mr Bullett submits that when taking these matters into account together with the facts and circumstances of the case, it is plausible that a quarter of the drugs were for self-consumption as claimed.

27.  I am prepared to accept on the evidence before me that the defendant was likely to consume the small quantity of cocaine found in the room, and had previously used the Ice pot to consume cocaine.  This fact, is supported by the circumstances in which the cocaine and the Ice pot were found, and the positive test result for cocaine when the defendant was re-arrested on 26 April 2016. It does show that during the relevant period the defendant was consuming cocaine.

28.  The question for this Court is whether part of the Ice was for her own use as she has claimed, or whether all of it was to be trafficked. 

29.  I should point out that it is an admitted fact that the police seized 15 daily rent receipts at the Guest House in the defendant’s name for the month of March 2015.  They were for the sum of $550, except for one which was for $400. It would appear that for these 15 days she paid a total sum in rent of $8,100. It is not in dispute that she was unemployed at the time of the offence and was not receiving any welfare benefits.  It was claimed by Mr Bullett that the defendant had bought the drugs the day before her arrest for $4,500 which was admitted to have a street value of about $21,500.  This evidenced that the defendant had a significant amount of money at her disposal at the relevant time.

The guiding principles on self-consumption

30.  The guiding principles for a sentencing court when addressing the issue of self-consumption are set out in the Court of Appeal decision of HKSAR v Wong Suet Hau and Anor[1]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 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：Criminal Pleading, Evidence and Practice 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 (unrep., Crim App No 214 of 1997, [1997] HKLY 349) and ecstasy (see: HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 at p.52, [1998] 2 HKC 371 at p.376).”

31.  The Court of Appeal in the recent case of HKSAR v Tsoi Man Chun,[2] had occasioned to analyse and discuss the guiding principles on self-consumption in Wong Suet Hau.  McWalters JA, giving the judgment of the court, explained at paragraph 54 that an offender is only entitled to a discount for self-consumption if the judge finds that “all or a significant proportion” of the drugs were to be consumed by him.  If he does not surmount this hurdle, then he is not entitled to any discount.  He explained that as to what is a significant proportion was said in Wong Suet Hau to be of such a proportion that it would make a difference to sentence.  

32.  In the previous paragraph of the judgment, McWalters JA had summarised the matters that arise when a sentencing court is required to deal with a defendant’s claim that some or all of the drugs in which he was unlawfully trafficking were for his own consumption.  He sets out four matters:

“(i) what must be claimed, and what must be proven to the judge’s satisfaction, is that all or a significant proportion of the drugs are for the defendant’s self-consumption;

(ii) the proportion of drugs for self-consumption must be such that, if true, it may well make a difference to sentence;

(iii) in determining whether the contention is true, the normal rules for determining the factual basis for sentence apply; and

(iv) where it is accepted by the judge that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary for the sentencing judge to specify the relative amounts or proportions except in the broadest of terms.”

33.  McWalters JA noted that if the sentencing court was satisfied that all or a significant proportion of the drugs were for the defendant’s own consumption then it will fall on the court to assess the amount of discount that it should award the defendant from the adopted starting point.  A range of 10 to 25 percent discount has been suggested in HKSAR v Chow Chun Sang.[3]

34.  Significantly and relevant to this case, are McWalters JA’s remarks on how a sentencing court should resolve a claim of self-consumption.  In the following paragraphs, he said:

“58. The statement in Wong Suet Hau that a Newton enquiry may not usually be necessary may have been misunderstood as discouraging judges from holding such an enquiry. Obviously, that was not the intention of the Court of Appeal for it specifically said that in resolving such a claim “the normal rules for determining the factual basis for sentence apply.” Whether such an enquiry is necessary in order for the judge to determine the claim of self-consumption will inevitably be a case sensitive matter. All that can be said is that once a credible claim is advanced it must be properly resolved through a process that is fair to the defendant, whether that be through a formal Newton enquiry or simply from exchanges between Bar and Bench and on the material placed before the court.

59. In whatever form this process takes place, it will necessarily require the judge to consider the risk that, notwithstanding the defendant’s intention that all or a significant proportion of the drugs will be consumed by him, some of the drugs might end up being trafficked. The greater the risk, the more it will impact on the proportion of drugs that the defendant claims he would have consumed.”

35.  The critical issue arising from the Court of Appeal’s decisions on self-consumption is the need for the claim of self-consumption to be proven to the sentencing court’s satisfaction.  As stated in Wong Suet Hau there is a real danger of abuse of this avenue of mitigation, and a sentencing court must have a proper factual and evidential basis in accepting the contention that “all or a significant proportion” of the drugs were for the defendant’s own consumption. 

36.  Mere assertions from the bar table, unless agreed or not in dispute or contentious, will generally not suffice.  The prosecution also has an important role to play in assisting the court in resolving such a claim.  If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is informed of it. 

37.  It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form. 

Discussion on self-consumption

38.  As I have already noted, Mr Bullett did not call any evidence on the defendant’s behalf on the issue of self-consumption but instead relied on various matters that he put to me in submission. 

39.  Mr Hingorani called the police officer who took a background statement from the defendant after her arrest.  The police officer testified that the defendant told him that after she had been released from prison in 2005, she had not taken any drugs and no longer had an addiction.  The police officer also explained that he described the device used to consume drugs that was found in the defendant’s room as an Ice pot because it was frequently used for such drug but agreed that it was also possible to be used for cocaine.  I did not find this evidence to be of any assistance and put no weight on the statement by the defendant to the police officer that she did not take any drugs and no longer had an addiction. 

40.  I am therefore left with what has been submitted to me by Mr Bullett for the defendant in support of her claim for self-consumption.  

41.  Whilst it is true that the defendant had a prior conviction in 2005 for consumption of a drug, it was for marijuana.  The evidence before me of the defendant’s drug abuse would indicate that cocaine is her drug of preference.  There is no evidence or credible information to suggest that she consumes Ice, other than the Ice that was found in her possession.  But given the quantity of Ice and the apparatus for packaging, the evidence points to it being possessed for the purpose of trafficking.

42.  The description of the device found in the defendant’s room as an “Ice pot” was given by the police officer whose evidence was that such a device was commonly used for Ice and hence the description.  He also stated that such a device was possibly used for cocaine. 

43.  In this case, the evidence points to the device described as an “Ice pot” as being used for the consumption of cocaine. 

44.  There is no issue that the defendant was intending to traffic in the Ice.  Found in the defendant’s room was an electronic scale, and it was acknowledged that the defendant was to package the Ice into about 30 packets. 

45.  It is noteworthy that when the defendant bought the drugs as claimed, she purchased a large quantity of Ice but only a small quantity of cocaine that would indicate that this was more likely for the purpose of self-consumption.  I have borne in mind that she had tested positive for cocaine on her re-arrest about a year after the offence.

46.  As I have already noted, Mr Bullett relied on certain documents seized from the defendant’s room that were contained in the committal bundle which have handwritten notations on them consisting of names or initials and figures, and whether something has been “paid”.  The document that Mr Bullett specifically referred me to was at page 153 of the committal bundle (English translation at page 150).  Part of the document in the English translation has the following:

“10/2	m0.5 paid 3G paid
	m0.5 paid
	ld+ld paid	Total: Full”

47.  Mr Bullet acknowledged that the document was not self-explanatory.  He submitted that according to his instructions, the reference to “m” is a reference by the defendant to “me” and further intimated that this notation was a reference of her having consumed half a gramme of an unspecified drug. 

48.  Mr Hingorani in response said such an interpretation could not be made on what was written there.  I agree.  This highlights the very reason why the sentencing court should have before it credible and reliable information and material in order to resolve a contested claim of self-consumption.  I have no hesitation to reject the assertion made on behalf of the defendant without any more to support it.

49.  I am not satisfied that the defendant used Ice or intended to use part of the Ice that she had purchased.  I am however satisfied that she used cocaine but that is not the issue that I need to resolve.

50.  For the reasons given, I am not satisfied that any portion of the Ice was intended to be consumed by the defendant.  I will therefore not grant any discount to the sentence for self-consumption. 

Discount on guilty plea

51.  The next issue is whether the defendant is entitled to a full one third discount for her plea of guilty. 

52.  The defendant entered her plea on the first day of trial with notice given to the prosecution about a week before.  As pointed out by Mr Bullett, the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 explained at paragraph 236 that the revised practice of affording discounts of sentence for pleas of guilty is to be applied in the future to those defendants that reach the stages in criminal proceedings identified in the judgment at which revised discounts of sentence for pleas of guilty are identified. 

53.  The defendant’s case was fixed for trial on 17 August 2016 which was prior to the handing down of the Court of Appeal decision on 2 September 2016.

54.  Mr Bullett submits that in light of the foregoing, the defendant is entitled to the full one third discount.  The prosecution do not seek to argue otherwise.

55.  Accordingly, the defendant’s plea of guilty on the first day of her trial receives the benefit of the previous practice of affording a discount of one third from the starting point. 

The sentence

56.  As I have previously mentioned, I adopt a starting point of 9 years and 10 months’ imprisonment and as the defendant is entitled to a one third discount, her sentence will be reduced to 6 years and 6 months’ imprisonment. The defendant is to serve a sentence of 6 years and 6 months’ imprisonment for this offence. 

57.  I should add that the time served by the defendant for the sentence of the offence of failure to surrender should not be credited as time served in relation to the present offence, even though she was on remand for the present offence at the relevant time.[4]