HKSAR v. SHIU HOI TIK

HCCC 74/2017

[2018] HKCFI 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 74 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 31 January 2018, Shiu Hoi-tik pleaded guilty to an indictment alleging that on 26 June 2016, at Tin Hor House, Tin Ping Estate, in Sheung Shui, in the New Territories, he unlawfully trafficked in a dangerous drugs, that is, 16.4 grammes of a crystalline solid containing 16.0 grammes of methamphetamine hydrochloride.

Mr Shiu agreed to a set of facts following his arraignment and plea. He admitted that on 26 June 2016, at about 11 am, he walked out of Tin Hor House, when he was intercepted by the police. The officer who intercepted him, considered that he was acting in a suspicious manner. The subject of the indictment was found on Mr Shiu in a plastic bag. The plastic bag contained the substance divided into ten further smaller bags. Also found in the possession of Mr Shiu was an amount of $8,750 and 3 mobile phones.

Mr Shiu was arrested for trafficking in a dangerous drug and was taken to Sheung Shui Police Station. A little later, on 26 June 2016, Mr Shiu participated in a video-recorded interview. In this interview, he told police that he had purchased drugs purchased drugs from a person he knew as “Kit Chai” of $1,000. He told police that the drugs were already in 10 smaller packets when he bought them. He asserted that he consumed dangerous drugs. He explained that the cash found on him was the wages paid to him by his employer. The defendant told the police that he was a casual transportation worker.

The facts admitted by Mr Shiu include the proposition that on the date in question, for purchase of 5 grammes or less of methamphetamine hydrochloride, the substance was selling for HK$340 a gramme. On this premise, the value of the drugs found in the possession of Mr Shiu would have been $5,576.

It is also admitted that there were studies which support the conclusion that an “Ice” addict consumed between 0.1 gramme to 0.6 gramme of “Ice” per day. Following his arrest, Mr Shiu was remanded in custody, and three days later, when in the custody of the Commissioner of Correctional Services, he tested positive for amphetamine in his urine.

The antecedent statement tendered by the prosecution was read and admitted. Further, it was admitted that on 15 March 2014, in the District Court, Mr Shiu was convicted of trafficking in a dangerous drug, where he received a sentence of 3 years and 4 months’ imprisonment.

Further inquiries by the prosecution, which are accepted by Mr Newman Wong, barrister-at-law and counsel for Mr Shiu, revealed that the drugs, the subject of the charge before the District Court was 13.71 grammes of cocaine. The source of this information was the reason for sentence published on the judiciary website.

In mitigation, Mr Wong submitted that his client was an “Ice” addict. That proposition was accepted by counsel for the prosecution, and is a reasonable inference from the finding of amphetamine in the urine of Mr Shiu three days after arrest.

Mr Wong contended that as a casual transportation worker, his client worked uncertain hours, and his income was thus uncertain. He told the court that it averaged something of the order of HK$15,000 a month. He said that his client succumbed to the temptation to supplement his income as a transportation worker by financing his drug habit, by purchasing a quantity of dangerous drugs, consuming some of them and selling the balance.

As for the proportion which was consumed, Mr Wong pointed to the admissions under caution in the video-recorded interview. The police were told in the interview that that Mr Shiu consumed “Ice”. He was asked, counter 32, as to the number of times per week that he consumed dangerous drugs, and whether he had any pattern of consumption. His answer at counter 33 is, “Around 5 times a week. The amount was half a packet, two to three days.”

Mr Wong submitted that it was difficult to derive an exact percentage of the quantity of dangerous drugs which were for the personal consumption of Mr Shiu, and the percentage which was sold to finance his habit. His contention was that doing the best that could be done with the information that the personal use which had been seized by the police was between 25 and 33 per cent. He contended that the appropriate starting point for trafficking in a dangerous drug should be reduced accordingly to take into account the proportion of drugs used for self-consumption, and in that regard, he referred to HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, Mr Wong submitted that applying the sentencing guidelines for “Ice” outlined in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the appropriate starting point was something of the order of 7 years.

Mr Wong accepted that his client indicated his plea in November 2017 in a letter which preceded a pre-trial review held by Deputy Judge Lugar-Mawson.

At this stage, it was indicated and accepted by the court that the trial set in February 2018 should be vacated. It was indicated that the only remaining dispute between the prosecution and Mr Shiu is likely to be percentage of the drugs seized by the police, which Mr Shiu intended to retain for personal consumption.

Mr Wong recognised that the appropriate discount for a plea of guilty indicated after committal would not be the full 33 per cent discount. Mr Wong submitted that the previous conviction should not be used in aggravation of an otherwise appropriate sentence.

The court was informed that Mr Shiu had undergone some vocational training in computer-related matters under the Yi Chun Scheme, and indeed, had obtained a diploma in that regard. He had not been able to find work connected with those skills.

The court was told that Mr Shiu was remorseful for his conduct and took full responsibility for it. He realise that at age 27, he had come to a point in his life where matters needed to be turned around, including ridding himself of the addiction and changing the pattern of the life that he had hitherto lived.

The community of Hong Kong and as a result, the courts of Hong Kong have, for many years, taken a severe view of drug trafficking, particularly in relation to “Ice”. This drug has terrible consequences for the individual. If anyone can attest to that, it is the defendant himself. It is savagely addictive, ridding oneself of that addiction is, to say the very least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to “Ice” is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs.

Further, the conduct of persons affected by “Ice” both in private, and perhaps more pertinently, in public, can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the level of those sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of this charge.

In relation to “Ice”, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for quantities involved in the present case is in relation to quantity of “Ice” which falls between the range of 10 grammes and 70 grammes, and that might attract a sentence between 7 and 11 years’ imprisonment.

In this case, Mr Shiu was financing his own drug addiction by trafficking in some of the drugs he had purchased. In this regard, by passing even a portion of the drugs to others, albeit for the purpose of financing his own addiction, he exposes others to the terrible consequences of consuming “Ice”. That this was done to finance an addiction does not diminish the fact that by selling the drugs to others, he was, at the minimum, exposing them to a risk of serious consequences.

The authorities recognise that some reduction of an otherwise appropriate sentence for trafficking in a dangerous drugs might be made by reason of the fact that some or all of the drugs the subject of the charge were for personal consumption, and I cite HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 for that proposition.

As has already been identified, the street value of the drugs the subject of this indictment was just under $5,600. Both parties accept that Mr Shiu is an addict, and was found in a public place, emerging from a building which did not contain his residence, but that his residence was something of the order of 100 metres away. Nothing of significance was found in the residence of the accused, such paraphernalia associated with the packing and distribution of drugs. The defendant consistently maintained that the drugs were for his own consumption. Given the unsteady income of a casual transport worker receiving an income which, on average, was about $15,000 a month, it seems to be sensible to conclude that it is true that Mr Shiu was financing his addiction by trafficking.

On the evidence before this court, it is difficult to come to a precise figure as to the quantity that was to be for personal consumption. Part of the reason for this is that there is nothing in the facts agreed between the parties or the answers given in the video-recorded interview, to which reference has already been made, as to the time period over which the drugs found in the possession of Mr Shiu were likely to be consumed.

Both the prosecution and Mr Wong suggested in evaluating the proportion of the drugs in the possession of Mr Shiu, I should proceed upon the basis that the relevant period was about a week. A further unstated assumption is that each of the ten packets found in the possession of Mr Shiu contained about the same quantity of drugs. On that premise, each bag contains 1.6 grammes, while, as I say, there is no direct evidence of that, it appears to be a sensible approach. The interpretation of the answer of Mr Shiu in the video-recorded interview at counter 33 contended for by Mr Wong, appears to me to be a sensible basis for providing an estimate.

Counsel for the prosecution accepts that a proportion of the drugs in question were for self-consumption. On inquiry by the court, he contended that the proportion for self-consumption would be about 25 per cent, taking a generous view of the matter. Counsel for Mr Shiu contended that this is probably between 25 per cent and 33 per cent.

The issue of calculation is further compounded by the somewhat ambiguous answer given by the defendant in the video-recorded interview. Doing the best I can with the material in the video-recorded interview, and working on the assumptions which were accepted by counsel for both parties, it seems to me that the figure is somewhere between 25 per cent and conceivably 30 per cent. Precision is nigh-on impossible, but it is nevertheless that the proportion of drugs in the possession of Mr Shiu for persona consumption was a significant one.

Accordingly, it is appropriate to reduce an otherwise appropriate sentence for trafficking in dangerous drugs by reason of the fact that a significant portion of the drugs in question were for self-consumption. In so doing, as the authorities recognise, possession of a dangerous drug is of itself something which is a criminal offence, and can attract a term of imprisonment. In this regard, it is recognised that such a term might be enhanced for what is characterised as the latent risk that the drugs that are possessed by a person might find their way into the possession of another person other than the convicted person.

In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the Court of Appeal indicated that the reduction might be of the order of something between 10 per cent and 25 per cent. In my judgment, the appropriate reduction in the present case is 15 per cent. That figure takes account of the fact as identified in the authorities germane to the appropriateness of a reduction in relation to trafficking cases involving a proportion of the drugs being for self-consumption. No one factor of those identified was decisive, but the proportion of drugs seized which were for self-consumption was a significant factor.

In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190, the Court of Appeal reaffirmed the long-standing practice of according to an accused who has pleaded guilty some discount of an otherwise appropriate sentence for his plea of guilty. What the Court of Appeal did in that case was to indicate that the level of discount might vary according to the timing of the indication to the court or to the prosecution of an intention to plead guilty. In this case, the defendant indicated to both the court and the prosecution he wish to plead guilty after he had been committed to the Court of First Instance for trial, about one week before the pre-trial review. At this stage, it appears the dates for trial had been allocated.

At the pre-trial review on 13 November 2017, the trial dates were vacated but for two days which were reserved for the disposition of the issue of what discount might be accorded to the defendant on the premise that some of the drugs found in his possession were for personal consumption. Parts of both of those days were devoted to this issue. On the first day, the plea was taken, and submissions heard in mitigation of penalty, and those were, in part, focused on that issue.

Part of the second day is devoted to the delivery of reasons for sentence, and other ancillary matters. The balance of time set down for the trial has been allocated to other matters, and to the extent that the utilisation of court dates is a relevant factor for the rationale for the grant of a discount from an otherwise appropriate sentence on account of a plea of guilty, it is right to observe that on the most pessimistic view, 80 per cent of the time hitherto allocated for proceedings in this case has not been wasted.

I make this point, because a day is usually allocated for a plea, and there are times, and this is one of them, where it is appropriate to reserve the sentencing decision of the court for consideration, and thus another day for the delivery of the sentence is appropriate. There is an argument that had the defendant pleaded guilty or indicated a plea earlier, that judicial time devoted to his case might have been allocated to other causes, but this is a bean-counting exercise and I do not think that it assists the analysis.

Applying HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190, the discount of 25 per cent, which is suggested to apply in circumstances where the plea is indicated after committal for trial, but before the allocation of trial dates, appears to be relevant even though the indication of plea in this case was about a week before the pre-trial review.

While it is plain from HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190 that the utilisation or non-utilisation of court dates by reason of the timing of the plea is a relevant, indeed, highly relevant factor, it seems to me that the justice of the situation in this case would merit the application of a discount of 25 per cent.

I accept that the defendant is remorseful for his conduct. It is at least possible that this arrest has brought home to him, in a manner which perhaps might have been lost in the previous arrest, that the defendant is, as Mr Wong put it on his behalf, at something of a crossroads. Clearly, step one in making a choice to follow a more appropriate and law-abiding path is to rid himself of the insidious addiction to “Ice”. Step two might be to take advantage of this time available to him in prison to at least start to equip himself with the skills he would need to give him the best chance of adopting the more law-abiding path. This court earnestly hopes that he makes such choices.

Those choices are in stark contrast to the lamentably poor choices he has made in the 27 years of his life so far. The defendant does have a previous conviction for trafficking in dangerous drugs, which plainly disentitles him to any consideration of a further reduction for previously good character.

In the light of the submissions advanced on behalf of the defendant by Mr Wong, I make it plain that on no account was the sentence I now propose to pass aggravated by the previous conviction.

The court does have to sentence this defendant for the trafficking in dangerous drugs which is, as I have already mentioned, a very serious matter.

Shiu Hoi-tik, please stand up.

Doing the best I can to balance justice and mercy, I think the sentence that the defendant would have received in this case, if it had gone to trial, is 7 years and 3 months. That I fix as the starting point for determining the appropriate sentence in your case. I reduce this starting point by 15 per cent to take account of what I accept to be the fact that a proportion of the drugs found on your person when you were arrested was for personal consumption. I then reduce the amount thus arrived at by 25 per cent to take into account your plea of guilty, your remorse, and related matters.

The sentence of this court is that you be imprisoned for 4 years and 7 months.