HKSAR v. KAI VANESSA

DCCC 317/2019

[2021] HKDC 1419

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 317 OF 2019

________________________

________________________

________________________

Reasons for Sentence

________________________

1.  The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The particulars of which was on 29 January 2019, in the departure hall of China Ferry Terminal, the defendant trafficked in the following dangerous drugs, 0.87 grammes by a narcotic weight of methamphetamine hydrochloride and 19.57 grammes by a narcotic weight of cocaine.

2.  The Summary of Facts is agreed by the defendant.  It shows that on 29 January 2019, the defendant was intercepted by customs officers for a customs checking at the Customs Departure Hall of the China Ferry Terminal.  She was carrying a handbag.  A body search was conducted.  Inside her left sneaker, there was found a plastic bag with white crystalline inside and another plastic bag wrapped with bubble wrap containing white pellets.  The defendant said that the smaller bag was ‘Ice’ and the larger bag was cocaine. 

3.  A further search found another two plastic bags wrapped with bubble wrap containing white pellets inside her right sneaker. The defendant had admitted they were cocaine.  She admitted that the ‘Ice’ and the cocaine were for her self-consumption on a trip to Macau.  The contents of the bag of suspected ‘Ice’ and three bags of suspected cocaine were examined. The quantities of drug found in the particulars of the offence were discovered by the government chemist. 

4.  The total street value of those drugs is $23,498.67. 

5.  The defendant admits that she possessed those dangerous drugs for the purpose of unlawful trafficking.  It would appear the defendant was in possession for the purpose of trafficking of a cocktail of drugs and it was her intention to go to Macau with those drugs.  Those facts were admitted. 

6.  The defendant is a person of clear record.  She is now aged 35 years.  Her parents divorced when she was young.  She originally started working in Hong Kong as a financial adviser for a finance company and also worked at Royal Bank of Scotland and then finally working in a petrol station.  She met a man and they co-habited and a daughter was born in 2013. The daughter presently is cared for by the defendant’s father and the defendant. 

7.  The defendant has been in the past a consumer of drugs and admits that she had become addicted to dangerous drugs.  She was asked to take dangerous drugs to Macau in return for free dangerous drugs and agreed to do so. 

8.  Her account of what occurred is that on 29 January, the drugs were brought to her.  She was going to be given a reward of $10,000 and some of the drugs that she was taking to Macau would be for her to consume when she was in Macau. 

9.  The defendant says that she never received the $10,000 and she was under the impression that the quantity of ‘Ice’, which was 0.87 grammes of methamphetamine, would be for her own consumption.  She is not able to quantify how much of the cocaine would be consumed by her. 

10.  The defendant, as I have already indicated, was a drug addict at the time of her detention.  She consumed amphetamine, benzodiazepines and cocaine.  The medical officer’s report from Lai Chi Kok Women’s Centre indicates that is the case.  The defendant says she is remorseful.  She has indicated her plea from an early stage.  She has a clear record and has assisted the prosecution both by giving a statement and by giving evidence in court against a named associate. 

11.  Because the defendant is the mother of a young child, I obtained a further welfare report on both the defendant and the child to see how they were progressing.  The defendant was released on bail during the course of these proceedings and had the opportunity to be with her daughter since then.  The defendant at present moment is in employment.  The daughter is now aged eight. 

12.  The defendant indicated to the officer that she quitted her drug habit after being charged for this offence and intends to find a stable full-time job whilst taking care of her daughter. 

13.  I will briefly set out the findings of the investigation.  The daughter presently is 8 years and 6 months old, a primary 3 student.  Her academic performance is good.  She has an A- good conduct score. She has not been absent or late in school.  She stayed with her grandfather from Monday to Friday and with her mother at the weekends.  The daughter indicated she appreciates her mother’s help with homework.  She missed her mother when she was detained in Lo Wu and she has a close and harmonious relationship with her mother and also with her grandfather.  The living conditions of both the grandfather and mother is considerably satisfactory. 

14.  The defendant has, I am told, expressed her remorse to the welfare officer.  She asked for a lenient sentence and to be able to continue her relationship with her daughter. 

15.  The contents of the report are encouraging and show that the defendant has resumed her relationship with her daughter and the daughter is thriving under the care of both her and her grandfather. 

16.  I turn to the approach to sentencing in this case.  The defendant has pleaded guilty to trafficking in a mixture of drugs. Firstly, there is the methamphetamine, which I will describe as ‘Ice’ from now on.  The guideline sentence for this can be found in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, where possession of a quantity up to 10 grammes will lead to a sentence of between 3 to 7 years’ imprisonment.  Of course, this is a quantity which is a small quantity, 0.7 grammes.  We put this at the bottom of that guideline.  

17.  As far as the cocaine is concerned, we are dealing with 19.57 grammes of cocaine.  The guideline for cocaine is the same of that as for heroin, that can be found in R v Lau Tak Ming and Others [1990] 2 HKLR 370.  A figure in excess of 10 grammes, that is between 10 and 50 grammes, leads to a sentence of between 5 to 8 years’ imprisonment.  That is the appropriate guideline for the cocaine possessed by this defendant for the purpose of trafficking. 

18.  When dealing with a mixture of drugs, the court can take what is described, either the individual approach or the combined approach and then those approaches should be tested by three further tests described as the absurdity test, the conversion test and the ratio test to see which is the appropriate sentence. 

19.  In this case, the individual approach would not be appropriate.  The individual approach is simply to take the appropriate guideline sentence for each drug and add them together.  That could lead to an excessive sentence in this case. 

20.  The other approach is to take the combined approach which would mean finding the base drug for calculation of the starting point for sentence and then adding an appropriate discretionary amount for the other drug found on the defendant.  And then applying the three tests I have already indicated to see whether the result is either absurd, whether it is appropriate, having regard to both conversion and ratio tests. 

21.  The quantity of cocaine at 19.57 grammes could lead by a mathematical calculation to a starting point for sentence in the region of 68 months’ imprisonment and also the ‘Ice’ would lead to a starting point of 36 months’ imprisonment. 

22.  Although ‘Ice’ is the most potent drug, in this case the quantity is, if not negligible, is a small quantity whereas cocaine is by far the largest drug possessed by the defendant here.  I consider the correct approach in this case is to take cocaine as the base drug with an upward adjustment for the ‘Ice’ and any other aggravating factors that exist. 

23.  I consider that taking the cocaine as the base drug and then an uplift for ‘Ice’ would lead to a sentence in the region of 72 months’ imprisonment.  That is then subject to the aggravating factors in this case which are, firstly, there is a cocktail of drugs and secondly, that it is intended for the drugs to be taken out of Hong Kong.  That would lead to a further 6 months’ imprisonment to be added to the 72 months, leading to a sentence of 78 months’ imprisonment. 

24.  I look at the mitigating factors that two of those, firstly, well, there are three in fact, three factors.  Firstly, there is the fact that the defendant is a drug addict and would have intended to consume some of the drugs herself.  Secondly, that she has pleaded guilty and thirdly, that she has also given evidence for the prosecution in a trial against a drug associate.  I am told that that did not lead to conviction but I have not been told that her evidence was untruthful.  I must assume her evidence in that case was truthful. 

25.  Taking these factors into account, firstly the fact of the defendant’s drug addiction and consumption of the drug herself. Discounts for self-consumption can range between 10 to 25 per cent where the defendant tends to consume a significant proportion of the drug.  However, in this case it does not appear to be the case that that threshold could be met. 

26.  However, when the case is that a less than significant proportion of an unquantifiable drug is accepted to be possessed for the defendant’s own consumption, a sentencing court has the discretion to award a discount for the starting point taken for the sentence to reflect this fact and that can be seen from the case of HKSAR v Choi Chun Wo [2018] 5 HKLRD 717.  The other case to refer to is the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69. 

27.  In this case, I have determined that the defendant clearly is or was at the time a consumer of the drug and would have consumed at least or certainly were to consume the ‘Ice’ and part of the cocaine.  I already indicated she has not made out that a significant proportion will be consumed by her but on a discretionary basis I will reduce the existing sentence of imprisonment by 6 months to reflect that, leaving a starting point for sentence now at 72 months’ imprisonment. 

28.  I must now calculate what further discount should be given to reflect the defendant’s plea of guilty and her assistance to the prosecution.  It has been said that if the accused has provided information followed by a truthful testimony as a prosecution witness, the usual practice is to grant a discount of 50 per cent as seen from HKSAR v Chui Tak Man [2014] 4 HKLRD at page 663.  It was said unless it can be demonstrated clearly that a certain aspect of his evidence is totally different to what was contained at the witness statement, we are of the view that the usual 45 to 50 per cent discount should be given and judges should be circumventive in disallowing the proper discount. 

29.  So it would seem from these cases that the defendant is entitled to a further discount of between 45 per cent to 50 per cent for her assistance to the prosecution.  I am told that she had given evidence and have not been told anything about her evidence other than she gave that evidence and there was no indication of evidence in any way substantially departing from the statement she gave or that it was truthful.

30.  I also bear in mind in the defendant’s case that she is a mother of a young daughter.  The daughter herself has the right to the expectation of a family life with her mother.  This is a mitigating factor in its own right.  The mother is with the daughter at present and both are thriving.  I would be very reluctant to, in any way, destruct that relationship at this stage. 

31.  Given that this defendant has both pleaded guilty and given assistance to the prosecution, I shall give her at this point a further 50 per cent discount from that starting point of 72 months, leading to a final sentence of imprisonment to 36 months’ imprisonment and that is the sentence I will impose.