CRIMINAL CASE NO. 104 OF 2010
COURT: Choy Yuk-lung, you can stay seated. You pleaded guilty at the first available opportunity, that is before a magistrate, to trafficking in 18.85 grammes of methamphetamine hydrochloride, commonly known as ICE.
The facts were that you entered Hong Kong from the Mainland through the Lok Ma Chau border control point with drugs secreted in your rectum. A vigilant police officer observed you behaving nervously as a result of which you were taken to North District Hospital where you later passed two condoms filled with drugs from your body.
You were arrested and cautioned and, amongst other things, said that the two packets of ICE were brought back to Hong Kong for your own consumption. Also in your possession was found in cash HK$2,335 and RMB$33,967.
During your interview you claimed you had bought the drugs for $6,000. It is admitted that the retail value of the drugs was HK$14,115.
You also stated in interview that this was the third time you had done this over the course of about a month. Clearly you are guilty of trafficking within the meaning of that term under the Dangerous Drugs Ordinance by virtue of your importing the drugs into Hong Kong.
It has been put on your behalf in mitigation that all of the drugs found in your possession on 4 December 2009 were for your own consumption. Since that matter is disputed by the prosecution and since, on the face of it, the claim is not incredible, I have conducted a Newton Inquiry on the issue.
To that end you have given evidence before me and been cross-examined. It is clear, on the authority of HKSAR v Chong Chee Meng Criminal Appeal 315 [2008], that the onus of establishing that all of the drugs are for your own consumption and thus a matter of mitigation relevant to sentence lies upon you on the balance of probabilities.
I have had the opportunity of observing you giving evidence. What is quite clear - and I do accept to the required standard - is that you were, at the time of your arrest, a drug abuser of long-standing. You told the officer who compiled your antecedent statement - and it has not been doubted or challenged - that you had been a drug addict since you were 14 years old.
Sad and extraordinary though it is that you can have been addicted to drugs for 30 years, your criminal record bears out that you have been convicted of drugs offences since 1988. Since that time you have made 10 separate appearances before the courts when you have been dealt with for possession of drugs.
Furthermore, it is obvious looking at you, that physically you bear the marks of years of drug abuse. In particular, I have been shown the results of that abuse which have manifested themselves in very obvious and unsightly marks, known as ICE sores, to the skin on both of your arms. So I am persuaded that, at the time of your arrest, you were addicted to methamphetamine hydrochloride.
I am therefore prepared to find, on the balance of probability that some of the drugs found in your possession that day were for your own consumption. However, I do not accept that all of them were.
On your person when arrested was found the equivalent of about HK$35,000. You had paid, so you told the police, $6,000 for this consignment of drugs. $41,000 in cash is a very large amount of cash for anyone to be carrying around, even acknowledging that you would need cash to get around the Mainland.
You have sought to explain or account for this large amount of money as being your wages in cash which were received at the beginning of the month. Furthermore, to further account for the shortfall, you claim you won more than $10,000 at mah-jong on the Mainland.
I have to say that the evidence of your earnings and your employment was not only extremely vague and lacking in detail, there is no real evidence of either your earnings or your employment beyond your bare assertion. What it comes down to is that you worked, not for any company or organisation or even a shop, but for an individual called Mr Yu Ka Fai, carrying goods for him comprising electronic component parts across the border to the Mainland. .
You were unclear as to how this Mr Yu made his living and he has neither a factory nor a shop. But for effectively acting as a transportation worker across the border for this Mr Yu, you received $750 per day or about $21,000 per month. That is a very large amount of money in my judgment for what you claim you do.
As I say, there is no other evidence of your employment and nothing in writing to support either the fact of employment or the receipt of such a monthly wage or indeed any wage. Conveniently the substantial shortfall between the cash found on you, together with what you say you paid for the drugs, which together come to about $41,000 and your monthly wages was conveniently explained by a win or wins at mah‑jong on the Mainland.
I simply do not accept, on the balance of probabilities or, indeed, as a reasonable possibility, that you were employed and remunerated as you claim. The significance of the money is that it is a very large amount for someone in your circumstances, as I find them to be, who is heavily addicted to ICE, to have on your person.
The inference that such an amount of money is connected with the trafficking of sizeable quantities of dangerous drugs is compelling, particularly where I find you have not been candid with the court about your employment and means of earning a living.
I should state that you apparently told the officer who prepared the antecedent statement that, at the time of your arrest, you were unemployed but previously you were a logistics worker. Although that statement would appear to support the conclusion to which I have come, I am not - in the absence of knowing how the statement came about and if it was said at all and how it was said - going to rely on that statement.
I have not lost sight of the fact that you did say when arrested that the drugs which, it must be inferred meant all of the drugs, were for your own consumption. But when you are a seasoned defendant who has been before the courts many times in connection with drugs it can be assumed that you know well the importance, certainly in sentencing terms, of the distinction between drugs for your own consumption or possession and drugs for the purposes of trafficking. And you will know better than most the evidential significance of a defendant’s verbal reaction to arrest for a drugs offence.
I have referred to your appearances before the courts for possession of drugs but you have also been before the courts for trafficking in dangerous drugs on three occasions, in 1992, 1999 and 2002; on two of which occasions you were also charged with possession.
The amount of drugs seized from you, would have on the assumption that you used one gramme per day, have lasted about 18 days. In fact you told the court in cross‑examination that you consumed a quarter to a gramme per day. This consignment, had you consumed it all yourself, would therefore have lasted you a minimum of 18 days at one gramme per day and 72 days at a quarter of a gramme per day.
These drugs, therefore, if they were all for your consumption, could have lasted you rather longer than you suggested which was two to three weeks yet your trips to the Mainland are evidently very frequent. Indeed between 8 November 2009 and 4 December 2009, you made eight trips to the Mainland and back, including the last one on which you were arrested.
It puzzles me, therefore, that as someone having such frequent opportunities of visiting the Mainland to obtain drugs, you would endure the discomfort of inserting into your rectum, not one but two condoms of a sizeable amount of drugs on this occasion.
It has been pointed out in cross-examination that for someone so heavily addicted to ICE it is surprising that there should have been no evidence, or trace of drugs, or paraphernalia found at your home, which is the place where you say you consume the drugs.
I cannot accept that the police, having found drugs on you, would not have carried out the most thorough search on your home for other drugs or drug associated paraphernalia. On the other hand nor did they find evidence of paraphernalia associated with packaging drugs for redistribution.
So this matter, whilst curious, is neutral. Either you were genuinely out of your supply of ICE on the day you went to the Mainland on 4 December last year, or you are not being candid as to where you actually keep your supply of drugs. As I say this is a matter which is neither against you nor in your favour and I am unable to make anything of it one way or the other.
In all the circumstances and having seen and heard you give evidence, I am quite sure that you were intending to traffic, as defined in the Ordinance, in the majority of the drugs in question in addition to importing them into Hong Kong from the Mainland. However, I also accept that you would have consumed a not insignificant amount of the drugs yourself and I shall reflect that finding in the sentence which I pass.
Leaving aside the issue of self-consumption of the drugs, the operative amount of methamphetamine hydrochloride for sentencing purposes in your case is 18.85 grammes. That would ordinarily bring you into the lower end of the 7 to 10 year imprisonment bracket as set out in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.
In my judgment, the amount in your case, leaving aside other considerations, would merit a starting point of 7½ years’ imprisonment.
However, there is an international element involved in your case in as much as the drugs were imported into Hong Kong across the border from the Mainland: See HKSAR v Abdullah [2009] 2 HKLR 437 at paragraph 30.
Accordingly an enhancement of that starting point is called for, bearing in mind that the suggested enhancement in Abdullah of not less than 2 years’ imprisonment, was in the context of a very large quantity of more than 1 kilogramme of heroin: See paragraph 43 of the judgment.
Bearing that context in mind, I would enhance the sentence in this case by six months making an overall starting point of 8 years’ imprisonment. I will reduce that overall starting point on account of my finding that some of the drugs - a not insignificant amount as I earlier termed it - were for your own consumption to one of 6 years’ imprisonment.
Mr Boyton, in mitigation, has told me of your aged father who is dependant on you and your daughter who is a married woman and therefore no longer dependant but who was in court yesterday. He has also told me of your health issues as a result of your long-term drug addiction.
However, realistically, the only mitigating factor of any real significance is your plea of guilty at the first available opportunity. I have been exercised as to whether you are entitled to a full one-third discount, in view of the fact that while I have found that some of the drugs were for your own consumption, I have not accepted your contention in evidence before me, that all of the drugs were for your own consumption.
Indeed, I have found that you have been less than candid with the court about how you earn a living and how you were in possession of such a large quantity of cash. Arguably there is a difference between a defendant who claims only part of some drugs were for his own consumption, whilst admitting the remainder were for trafficking, who is believed by a judge upon a Newton Inquiry, and a defendant who claims that all of the drugs were for his own consumption but who is not believed by a judge at a Newton Inquiry. It might be said that any remorse behind the latter’s plea is somewhat undermined by his stance at the Newton Inquiry.
However, in the light of the judgment in HKSAR v Chong Chee Meng Criminal Appeal 315 [2008] which has considered this matter, and by which I am bound, and in the light of the fact that your plea was entered at the first available opportunity, that is, before a magistrate, I intend to give you a full one-third discount from the starting point of six years.
The sentence of the court is that you will go to prison for four years.