HKSAR v. CHU YIN SHAN

HCCC 45/2018

[2018] HKCFI 2254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 45 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 25 July 2018, Chu Yin-shan was arraigned on an indictment alleging trafficking in dangerous drugs. To this indictment, she pleaded guilty. A Summary of Facts have been prepared and she accepted as true that summary. Later in this judgment, I will set out some aspects of the procedural history of this matter which have some importance on how the accused came to plead guilty at this particular stage, and how issues unfolded in this court, in order to arrive at the sentence, which will shortly be announced.

On 11 March 2017, outside 169-179 Tai Nan Street, in Sham Shui Po, Chu Yin-shan was intercepted by a police officer. The officer then demanded to search her because he suspected that she was in possession of dangerous drugs. The officer found four blue striped resealable plastic bags containing a crystalline solid which was suspected to be dangerous drugs and a red striped resealable plastic bag containing what appeared to be the same substance.

She was asked by the officer what was contained in the five packets. To that question she responded, “’Ice’”. The officer continued to ask the accused about the source of the ‘Ice’. She volunteered that she bought the five packets for $3,600. The accused was then asked how to contact the seller of the ‘Ice’ and what she had the packets for. The accused answered that she intended to sell each large packet at $2,000 and each small packet at $800, to earn some quick money.

Following the exchange about the purpose of possessing the drugs, the officer then declared arrest on the accused for trafficking in dangerous drugs and cautioned her. The precise terms of the caution are not in the agreed facts, but it is common ground between the parties that the witness statement of the officer, which is in the depositions, reveals that the caution is in the usual terms and the accused then answered, “I have nothing to say.” The arrest and caution took place at 9.42 pm.

Further inquiries revealed that the accused was actually wearing a brown wig. She had $1,440 in her possession, together with a mobile phone and a SIM card and battery.

The place where the accused was arrested was on the street just outside the entrance to her residence. The Admitted Facts reveal that a search of her residence later revealed nothing suspicious.

Sometime later, a post‑record of the exchange between the accused and the police officer was made. The terms of the post‑record are not in the agreed facts, but it is common ground that they accurately replicate the exchange between the accused and the officer in the street. Of significance is that at 11.53 pm, the post‑record was read over to the accused.

The Admitted Facts also reveal that on 12 March 2017 at 0156 hours, a statement was taken from the accused by Detective Police Constable 7681. The statement is exhibited. The statement talks about her background and employment history. The statement also speaks of her previous criminal record. She asserts she has no Triad background. She then goes on, “I have a habit of smoking drugs ‘Ice’, occasionally. I smoke it five times a week. I smoke 0.5 gramme of it each time. I do not suffer from serious illness or mental illness.” It is important to note that this statement was taken shortly after the post‑record.

It is also an admitted fact that the accused to participate in a video‑recorded interview. As the Admitted Facts reveal, the accused remained silent throughout the course of that interview. Although not explicitly stated in the Admitted Facts, the exercise of the right to remain silent by the accused followed a caution administered in the course of the video‑recorded interview.

The retail value of the ‘Ice’ was $7,763.

The accused is aged 35. The previous criminal record of the accused commences in 2006 and involves convictions in 2008 for dangerous drugs following which she was sent to a drug addiction treatment centre. It is a fair inference from the circumstances of this case that the treatment accorded to her in the DATC was unsuccessful.

In 2010, she was convicted of trafficking in dangerous drugs. In that case, HCCC 133/2010, this accused pleaded guilty to an indictment that she unlawfully trafficked in 139 grammes of a mixture containing 111 grammes of heroin hydrochloride. On a plea of guilty, she was sentenced to 6 years and 4 months. Her last recorded conviction was in 2013 for the crime of conspiracy to defraud.

Following her arrest, the accused was brought before a magistrate and remanded in custody. At the Lai Chi Kok Reception Centre, her urine was tested for drugs and that revealed a positive test for both cocaine and ‘Ice’.

The antecedents statement prepared by the police and admitted by the accused in this court, accepts that she is an addict. Although the antecedents statement does not deal with the particular drug in question, it is common ground that the subject of the addiction is ‘Ice’.

It is contended that the accused was addicted to ‘Ice’ at the time of her arrest. She was found in the street at the front door of the building in which her home was located and found with drugs worth just over $7,700. She tested positive for amphetamines in the urine test, following her remand into custody. She was unemployed at the time.

The accused had a history of convictions and orders for detention in a DATC. Within a few hours of her arrest, she told the police she was a drug user. The antecedents statement asserts that she was. I have no difficulty in accepting that she was a drug user at the time of her arrest. It is a fair inference that she had been so for a substantial period prior to that.

The drugs seized from the accused were analysed by the government chemist. The analysis reveals that the four plastic bags referred to by the officer contained a total of 26 grammes of a crystalline solid containing 25.6 grammes of methamphetamine hydrochloride. The other plastic bag referred to by the officer contained 1.53 grammes of a solid containing 1.5 grammes of methamphetamine hydrochloride.

The case was originally committed for trial by a magistrate on 5 February 2018. The matter originally came before this court as a case management hearing on 12 July 2018 when it became apparent from submissions made by counsel for the accused that her position was that she admitted she was in possession of the drugs and possessed them for the purpose of trafficking. She also asserted that she possessed a percentage of the drugs for her own consumption and that 50 percent was for trafficking.

The matter was adjourned to 18 July 2018 to explore whether there could be a form of agreement as to the proportion of ‘Ice’ which was for trafficking and that for personal consumption.

The adjourned case management hearing continued on 18 July 2018 and the court was informed that agreement to any portion of the drugs being in the possession of the accused being for personal consumption had not been reached. However, it was suggested that it might be appropriate to dispose of this matter, without the necessity for a Newton hearing upon the basis of the procedure outlined by the Court of Appeal in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69. On that basis, the matter was adjourned to 25 July for a hearing in open court for an arraignment and submissions on mitigation of penalty.

The Procedure in HKSAR v Wong Suet Hau

Where, as here, there is a dispute as to facts germane to the appropriate sentence to be imposed, it is sometimes necessary to hold what is known as a Newton hearing (R v Newton (1983) 4 Cr App R (S) 388). Lord Lane CJ, observed in R v Newton it would be open to the court to assume a jury function and reach a conclusion after hearing evidence. Alternatively, the court can hear no evidence and reach a conclusion after hearing submissions of counsel ((1982) 4 Cr App R (S) 388, 390).

Consistent with the observations of Lord Lane CJ in R v Newton, in HKSAR v Wong Suet Hau & Anor (above), the Court of Appeal held that it was not always necessary to hold a Newton hearing. In this regard, the Court of Appeal observed ([2002] 1 HKLRD 69, 78-80):

“The answer to the question which was raised when leave in both these appeals was given, namely what the sentencer should do when the trafficker says part of the drugs were for his own consumption is that, where appropriate, this element should be taken into account when sentence is imposed, because all sentencing must be based on a version of the facts, which properly reflects the justice of the case.”

The Court of Appeal then observed that appropriate care needs to be taken to analyse the validity of any assertion on the part of the accused, that all or part of the drugs was in the possession of the accused was for personal consumption. The court then continued:

“Arising from these considerations:

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 consumption of the defendant and not for trafficking. Where it is apparent from the circumstances as a whole of that contention, if true, would make a difference to sentence. The sentencing court should address the issue.

Having regard to the dangers of the abuse of this avenue of mitigation, the judge took the greatest care in all surrounding circumstances to decide whether or not to accept the contention.

In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered included:

(a) 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 are being carried in a public place;

(d) The presence of paraphernalia associated with drugs, including, on the one hand, items used for packaging, weighing, 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 a 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 the drugs, otherwise than by trafficking in them; and

(h) The defendant’s criminal record, if any, relating 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 is cited for that.”

In my judgment, the instant case is well capable of being resolved in the manner contemplated in HKSAR v Wong Suet Hau.

Issues for Consideration

There are three principal issues arising in this case:

(1) What is the appropriate starting point for the sentence in this case;

(2) Was part of the quantity of dangerous drugs seized from the accused for her own personal consumption, and if so, what adjustment to the starting point should be made on account of that, taking into account any adjustment which might be appropriate on that premise for the risk that the drugs that were for self‑consumption, might fall into other hands; and

(3) What discount should be accorded to the accused, given her plea of guilty did not come at the first opportunity.

Sentencing Principal ‑ Tariff for ‘Ice’

The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to drugs such as heroin and ‘Ice’. Both drugs have terrible consequences for the individual and in relation to ‘Ice’, if anyone can attest to that, it is the defendant herself. It is savagely addictive. Ridding oneself of that addiction is, to say the 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 manner of the sentences and the levels of those sentences traditionally imposed for the trafficking in ‘Ice’. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.

In relation to ‘Ice’ guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for the quantities involved in the present case, which is 27.1 grammes of ‘Ice’, is for quantities between 10 grammes and 70 grammes, a term of between 7 and 11 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

Relevance of Possession for Self‑Consumption

The authorities recognise that on a trafficking in dangerous drugs charge, the possession of some of the drugs, the subject of the charge for self‑consumption, is a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, already mentioned and more recently in HKSAR v Chow Chung Sang [2012] 2 HKLD 1121. However, as the Court of Appeal in HKSAR v Wong Suet Hau and HKSAR v Chow Chun Sang made plain, possession of dangerous drugs is, of itself, a serious offence and there is also the issue of what is known as “latent risk” to consider.

Discount for Timely Plea of Guilty

For many years, it has been recognised that a timely plea of guilty should be recognised by a discount from an otherwise appropriate sentence. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, 2016 5 HKC 231, [2016] HKEC 190, the Court of Appeal restated the principle that a critical factor in exercising the discretion in a sentencing court is the timing of the plea. The Court of Appeal suggested that if the plea is indicated after committal, but before it is set down for trial, subject to the discretion of the sentencing court, a discount of the order of 25 per cent is appropriate.

To place this in context, the Court of Appeal suggested that subject to the discretion of the sentencing court, a person who pleaded guilty on the first day of trial, might receive a discount of 20 per cent. Perhaps the critical factor in the underlying rationale for according a level of discount, is the time saved by the court system, as a result of the plea of guilty.

Application of Sentencing Principles ‑ Starting Point

An appropriate starting point for trafficking in 27.1 grammes of ‘Ice’ is 8 years’ imprisonment. A mathematical calculation might suggest a slightly higher level, but the authorities support the conclusion that within the sentencing band, a purely linear approach to sentencing is inappropriate.

The issue raised in this case arises from the assertion made on behalf of the accused that 50 per cent of the drugs in her possession were for personal use.

The assertion of personal use is contested on behalf of the prosecution. In particular, the prosecution points to the fact that the accused told police, on the street, that she intended to sell what she possessed. In answer, the case for the accused is that this answer was given at a time which cried out for a caution and, as subsequent facts in this case demonstrate, on two occasions within less than 24 hours, the accused, on being cautioned, immediately responded by exercising her right to silence and having nothing to say.

The first occasion is, of course, the caution on the street, which for all practical purposes followed the inquiries about the use to which the accused was going to put the drugs found in her possession. The second occasion was her responses in the course of the video‑recorded interview which occurred on 12 March 2017.

The prosecution case is that shortly after the post‑record was completed, she was interviewed as to the aspects of her background. And she said that she had the habit of smoking ‘Ice’ and consumed 0.5 gramme per day. The case for the defence is that little weight should be accorded to the answer given in the street about the intended use, because a caution should have been administered before that.

The issue that arises as to what use can be made of the verbal admissions which support the conclusion that the whole quantity of dangerous drugs was for sale.

No reference is made in the Agreed Facts to the post‑record and I take from that, that the prosecution does not intend to rely on it.

Within a few minutes of concluding the post‑record, the accused gave a statement to another officer where she asserted she was a drug user. It is a fair inference that the accused must have known at this stage, that she had the right to silence and on this occasion, she exercised the right to speak.

In my judgment, the obligation to caution occurred well before the accused made the admissions to the officer about the intended use of the ‘Ice’ that he had found. The basic principle is well‑known and understood.

Rule II of the Secretary for Security’s Rules and Directions provides:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions relating to that offence.”

The officer in this case had evidence the minute the accused admitted that she had in her handbag, or that which she had in her handbag was ‘Ice’. ‘Ice’ is a well‑known slang term for methamphetamine hydrochloride. The critical words in Rule II are, “An offence”. The offence that had been admitted at this stage was, at minimum, possession of a dangerous drug. That the officer may have wanted further information to shore up an investigation for possession of unlawful trafficking is therefore, not to the point. Possession of dangerous drugs is a criminal offence and indeed, a serious one, readily punishable with imprisonment.

The caution is an important stage in the criminal process. It is no mere formality. It informs the person being cautioned of one of the most fundamental rights that a member of the Hong Kong community possesses: the right to silence.

The underlying assumption of this obligation portion is that the person, the subject of an investigation by a law enforcement official, may not appreciate that they have that right, or may not appreciate the consequences of giving up the right. The requirement of Rule II balances the legitimate concerns of law enforcement and the right vested in such a person.

One of the ways in which it balances those rights is imposing the obligation to caution at the stage where the police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence.

Moreover, it is significant that the instant the caution was administered, the accused exercised her right to silence.

The administration of a caution and the timing of the administration of that caution are part of a concern for the fairness of the proceedings, see Secretary for Justice v Lam Tat Ming & Anor [2000] 3 HKCFAR 168. Although SJ v Lam Tat Ming & Anor speaks of a concern for a fair trial, it seems to me that this is to be understood in the context of what was at stake in that appeal, which was the fairness of a trial.

I do not understand the Court of Final Appeal to be limiting this concern to fairness to only one component of the criminal process, albeit a major component. While it will be comparatively rare for the issue of the timing of the administration of a caution and consequent issues of fairness to arise in the sentencing phase of criminal proceedings, it has arisen here and needs to be dealt with.

Counsel for the accused contends that it would be unfair to rely on the admission against interest that the accused intended to sell all of the drugs she possessed. He took the position that the appropriate approach is to place little weight on that admission. He submits that, given the urine sample of the accused taken three days later, it still revealed the presence of amphetamine and cocaine and on the realistic assumption that from the moment of arrest until the urine sample, there had been no further ingestion of either of those substances, that the accused may have been affected by drugs at the time she was intercepted.

In my judgment, that is a somewhat speculative approach and I do not think that I could take it into consideration. Nevertheless, given that a few moments later the accused was cautioned and immediately exercised her right to silence and continued with that stance following the later administration of a caution less than 24 hours from this incident, counsel for the accused submits that it is a fair inference that she did not appreciate her right to silence at the time of questioning about her intended use and it would be unfair to rely on that to her detriment in the sentencing phase.

Counsel for the prosecution argues that full weight can be given to the admission against interest concerning the intended use of the drugs found in the possession of the accused. In essence, his argument was that the accused said what she said and she has to live with the consequences. Implicit in this argument is that there was nothing unfair about relying on uncautioned words in this context.

It seems to me that if it is right to say that at the time she said what she said that she did not appreciate the existence of her right to silence, it is in my view, to the value the importance of the caution by saying there is nothing unfair about relying on these words in this context.

In my judgment, it is a fair inference to conclude she would not have said what she said about the intended use of the drugs, had the caution been administered at the time I find that it should have been administered. It is unfair to place any weight on the answer.

Given the criminal record of the accused, it is common ground between the parties that the accused is an addict, and given she asserted in her statement shortly after the finalisation of the post‑record, that she consumed drugs and did so at a rate of 0.5 gramme per day.

When one takes account of the further fact that no further drugs were found in her premises, which were in the building near to where she was intercepted by the police officer, I think it is a perfectly reasonable inference that the accused would use a portion of the stock of drugs found in her possession for her own consumption.

On that premise, the real question is, what portion? I am sure, using the language of HKSAR v Wong Suet Hau & Anor (above), it was a substantial portion of the drugs in the possession of the accused were for personal consumption. I do not think I could say that it was the percentage of drugs contended for by the accused. In any event, if that was true, as the accused asserted, that 50 per cent of the drugs was for her own use, it seems to me that there would be a high latent risk that some of the 13‑odd grammes would not end up for her own use.

When an accused is found guilty or pleads guilty to trafficking in dangerous drugs, the fact that some of those drugs were for the personal consumption of the accused, that is a mitigating factor. The issue for assessment is the extent to which such mitigation should reduce the starting point, which would otherwise be appropriate for the drugs in question.

The best I can do is to say that I am sure a quantity of drugs in the possession of the accused for self‑consumption was substantial. In my judgment, there is clearly a latent risk that whatever the proportion for self­‑consumption there is, that some of that portion might end up in the wrong hands. That is an important factor when considering the appropriate reduction of sentence for trafficking.

What must be added to that consideration is the point made in the authorities that possession of dangerous drugs, and perhaps with even more greater force, possession of ‘Ice’ is itself a serious matter and capable of attracting a sentence of imprisonment. In my judgment, any calculation is, of necessity, an imperfect one.

In HKSAR v Chow Chun Sang (above), the Court of Appeal made the point that:

“When all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.”

The court went on to list a number of factors to weigh in the balance in determining an appropriate reduction of the otherwise appropriate sentence for trafficking. These principles were recently restated in HKSAR v Tam Ling Yuen CACC 159/2015.

In all the circumstances, balancing the factors articulated in HKSAR v Chow Chung Sang (above) and recognising that an evaluation of the specific issues at stake in the case, as in the present case, any assessment must always of necessity be imperfect. In my judgment, the appropriate discount in the present case is 20 per cent.

The plea of guilty was not indicated at the first moment. The case was committed to the High Court for trial on 5 February 2018. The indictment was filed on 12 February 2018. The matter appears to have been listed for trial on 22 March 2018.

As has already been noted, there was a case management hearing on 12 July 2018. The trial was set for 2 November 2018 with five days reserved. The court was notified of the plea of guilty on 12 July 2018 and, for all practical purposes, the dates since then have been devoted to the realisation of that plea. The trial dates have been vacated and there can be no doubt that another case, which might otherwise have been delayed, can be brought forward and tried within the time allocated in November.

The Court of Appeal, in suggesting different levels of discount from an otherwise appropriate sentence at various milestones in the course of a case after it has been committed for trial to the High Court, leaves the precise discount in the discretion of the sentencer. In my judgment, the justice of this case would be met by a discount from an otherwise appropriate sentence, of 25 per cent.

Conclusion

The starting point for the sentence is 8 years. That then is reduced by 20 per cent for the fact that some of the drugs in her possession were for her personal consumption. That sentence is to be further reduced by 25 per cent to reflect her plea of guilty.

Before sentencing the accused, I must say that I gratefully acknowledge the assistance of counsel in this case.

Balancing the factors I have outlined, and in an attempt to balance justice and mercy, you are sentenced to a term of imprisonment of 4 years and 9 months.