HKSAR v. CHUI FEI YIN

HCCC 144/2018

[2018] HKCFI 2255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 144 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 5 September 2017, uniformed police officers on patrol in the building in Reclamation Street in Mong Kok noticed Chui Fei-yin, hereafter 'the accused', at the time they noticed the accused, the officers were about four to five metres away from her. The accused appeared to notice the officers and turned around and ran upstairs. The officers gave chase. The officers noticed that she put down a rucksack on the 2nd floor of the building.

The officers thought that the accused appeared to be very nervous and she kept saying that the rucksack did not belong to her. The rucksack was searched. Amongst other things, it contained a handbag containing the identity card of the accused. It contained a pink bag containing five resealable plastic bags containing what on further analysis was found to be 80.01 grammes of a crystalline solid containing 79.91 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. It also contained seven small resealable transparent bags and two electronic scales.

The accused was arrested for trafficking and under caution she remained silent.

The estimated value of the ‘Ice’ in September 2017 is $26,323.

On 30 April, the accused pleaded guilty in the course of committal proceedings before a magistrate. By reason of the plea, she now admits that she was trafficking in dangerous drugs.

The accused is 46. She was born in Hong Kong. She holds a Hong Kong identity card. She was educated up to Form 3 and was employed at the time of her arrest. She worked in the beauty industry. I am informed today that she was earning in the region of $15,000 per month at the time of her arrest.

The accused asserted to the police that she was a drug addict. Her mother is aged 66. She is a divorced person. The accused has a son aged 28. She has a criminal history which commences in 2014. She has been convicted on three occasions for possession of dangerous drugs. In December 2016, the accused was once more before a magistrate and she was then detained in a drug addiction treatment centre.

On 8 September 2017, that is three days after her arrest, the accused tested positive for the presence of amphetamine in her urine when she was incarcerated in Lai Chi Kok Remand Centre.

I have received two mitigation letters. The first is from the accused herself. She writes that having now been in remand, she has come to deeply regret what she has done and the effect that this has had on her mother. Not the least of her concerns is her regret that her mother has to travel a long way to visit her in prison.

I also have a letter from Ms Wong Ching-yee who is the mother of the accused. She says she blames herself for the lack of attention that she gave to the accused when she was young. She attributes the bad behaviour of the accused to her getting into company with bad people. She and the accused both point to the fact that at age 20, the accused became an organ donor.

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 ‘Ice’. This particular drug has terrible consequences for the individual and if anyone can attest to that, it is the accused herself. ‘Ice’ 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 ‘Ice’. Further, the conduct of persons affected by ‘Ice’ in private and public can be quite dangerous.

The courts have reflected the view of the community and the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs and that includes the drug the subject of the charge in this case.

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 this case is between 70 grammes and 300 grammes and the authority declares that that might attract a sentence of between 11 and 15 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

This approach to sentencing is deliberately and expressly designed to deter not only individuals who are guilty of trafficking, but to deter others who might be tempted to traffic. The hope is that they might understand that the cost of trafficking in dangerous drugs is not only the cost of the drugs themselves, but the risk of penalty. The accused has found that out in a very harsh way.

It seems to me that applying the recognised guidelines to what I have earlier made reference, the appropriate starting point in this case is 11 years. This is on the premise that he appropriate sentence within the relevant sentencing band should not be calculated on a linear basis.

The accused pleaded guilty before a magistrate and was committed for sentence to the High Court. She is on that basis a person who has taken responsibility for her conduct and pleaded guilty at the earliest practicable moment. By reason of that, the courts recognise that this should be accorded a discount of one-third from what otherwise might be an appropriate sentence.

Mr Kevin Chan who appears for the accused in this case urges on me that a portion of the dangerous drugs found in the possession of the accused was for her own consumption. Indeed, he urges that that portion is 50 per cent. He points to the fact that it is recognised that she is a regular user of the drugs, the antecedent statement says so. We also know from the urine test at Lai Chi Kok Remand Centre that she had even three days after arrest amphetamine in her system. Her criminal record speaks of addiction. Although, it is perhaps a matter of regret that she didn't get to go to the drug addiction treatment centre earlier in the process, but that is a matter that is one simply of regret rather than anything else.

The courts have for a long time recognised that on a charge of trafficking in dangerous drugs that the possession of a portion of those drugs for personal consumption is a matter which is capable of mitigating the sentence that might otherwise be imposed. One sees that in the decision of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69. Further, this was confirmed in a decision of the Court of Appeal in HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572. There are a multitude of other decisions of appellate courts to support that proposition.

There are two issues which arise from that. The first issue is the issue of whether, in fact, a portion of these drugs were for personal use. That is an issue of fact and in HKSAR v Wong Suet Hau, Stuart-Moore VP articulates a number of considerations which might inform a court as to that issue. In articulating those considerations, Stuart-Moore VP makes the point that it will not always be necessary to have what is commonly known in criminal practice as a Newton hearing. Such a hearing was named after case the R v Newton (1983) 77 Cr App R 13.

In this case, it seems to me eminently appropriate to determine this issue by reference to the kind of approach contemplated by Stuart-Moore VP. Mr Chan readily accepts that if one looks at the list of factors articulated by Stuart-Moore VP that not all of those resolve themselves in favour of this accused. That she is a regular user and the drug that she was found with is the drug of choice for her is clear and well established. Indeed, Mr Cheung for the prosecution helpfully and properly accepts that reality.

The difficulty for this woman is that she is in receipt of wages of something of the order of $15,000 per month and these drugs are worth in excess of $26,000.

It seems to me that it is highly unlikely that she was in possession of 50 per cent of them for her own consumption. However, that is not the end of the matter. What the authorities say is that if she has a significant proportion for self-consumption that that might attract a level of discount. The authorities identify that in that event, a further discount from sentence of between 10 and 25 per cent may be appropriate.

Plainly, the higher the proportion in a case like this, the greater the latent risk that would be involved that the drugs would fall into the wrong hands. The authorities clearly recognise that for possession of dangerous drugs, we are looking at an offence which is viewed seriously by the community and the legislature.

Terms of imprisonment are regularly imposed for that offence and the level of imprisonment may be informed in part by the latent risk that some of the drugs might fall into the hands of others even where the accused is not being sentenced for trafficking.

It seems to me in this case that some of the drugs would be used for her self-consumption. I think the amount is not readily quantifiable, but I consider that it is significant. What I am prepared to do is proceed on the basis that allowing for, one, the seriousness of possession itself, two, the latent risk that the drugs might fall into the wrong hands, that a discount of 10 per cent for that purpose would be appropriate.

The accused must realise that the conduct on her part is in a completely different league from the orders and sentences imposed on her and revealed by her previous criminal record. On any view, even with the appropriate discounts, that is the discount for pleading guilty and the reduction of 10 per cent that I am prepared to allow for part of these drugs being for self-consumption, this woman will be imprisoned for a substantial period of time. If you look at this from the perspective of the individual and her mother, that is a sad and hard thing. However, the price that the accused is about to pay is the price the community demands must be paid in an attempt to reduce the ravages of this terrible drug on our community.

In an attempt to balance justice and mercy, I have arrived at the following sentence.

I am prepared to allow 10 per cent reduction on the basis that you possessed a significant proportion of these drugs for self-consumption. You are also in this case entitled to one-third off in addition to that for your plea of guilty before a magistrate.

The appropriate sentence, therefore, is, on my calculation, 6 years and 7 months and that is the sentence of this court.