HKSAR v. Hung Wing Yu

HCCC 433/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 433 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted on her own plea on one charge of trafficking in dangerous drugs and one charge of possession of a dangerous drug.

The guilty plea on the possession charge came on the first day of trial. The guilty plea on the trafficking charge only came on the seventh day of trial, the defendant having unsuccessfully contested the admissibility of her confessions in a six-day voir dire.

The Particulars of Offence of Charge 1 provide that on 26 May 2014 at Tsut Hei Building, Ting Fu Street, Kwun Tong, Kowloon in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 416.86 grammes of a powder and 0.16 gramme of a crystalline solid containing 215.40 grammes of ketamine, and 16.18 grammes of a solid containing 8.99 grammes of cocaine.

The Particulars of Offence of Charge 2 provide that on 26 May 2014 at the same address, the defendant had in her possession a dangerous drug, namely 0.92 gramme of a crystalline solid and 0.18 gramme of a solid containing 1.03 grammes of methamphetamine hydrochloride, commonly known as the “Ice” drug.

The Summary of Facts which has been admitted by the defendant provides as follows, which I shall quote in full:

“1. In the early afternoon of 26 May 2014, members of Team 1, Regional Anti-Triad Unit, New Territories South, mounted an anti-dangerous drugs operation inside Tsut Hei Building, 8 Ting Fu Street, Ngau Tau Kok.

2. At about 1523 hours, DSPC33291 and WDSPC55785 spotted the defendant walking up to the top floor, ie, 5th floor of the building, and about to open the iron gate of Flat J with some keys.  The defendant was intercepted for inquiries.  Following a search of the defendant’s Gucci bag by WDSPC55785, multiple resealable plastic bags containing suspected ketamine were found inside her handbag together with suspected cocaine.  DSPC33291 arrested and cautioned the defendant for trafficking in a dangerous drug.  In reply, the defendant admitted possessing “K Chai for selling and earning some money for making repayments”.

3. Enquiries revealed that the defendant resided in a subdivided unit of Flat J, viz. Room J2. With the defendant’s consent, a search was conducted of the room.  Multiple resealable plastic bags containing suspected dangerous drugs, one “Ice” flask containing suspected “Ice”, an electronic scale and a vast quantity of empty resealable plastic bags were found by the defendant’s bed and seized by DPC34483.  Under caution, the defendant said the drugs were ketamine and she intended to sell it for profit to repay debts.

4. The defendant was arrested and taken to Sau Mau Ping Police Station where a video-recorded interview was conducted between 2301 to 2338 hours on the same date. 

5. The defendant was interviewed under caution on video and she expanded on her drug trafficking activity.  The defendant also admitted that she possessed the “Ice” flask for inhalation of the drugs.  The electronic scale was used to weigh the drugs. The gist of the video-recorded interview is summarised as follows:

(1) The defendant claimed to owe over HK$100,000 to a bank. She resorted to drug trafficking to earn money to repay the debt.

(2) She obtained the drugs from a male in Kwun Tong Park but declined to provide details of the male and also refused to answer questions concerning the subsequent sale of the drugs.

(3) She rented Room J2 for HK$3,000 per month and used the premises for her living and storage of drugs.

(4) She was the sole tenant of Room J2, she never allowed or invited others to visit her residence.

(5) She admitted ownership of the Gucci bag inside which the ketamine and cocaine were found.

(6) The seized mobile phones were used for her drug trafficking activities.

(7) She possessed the “Ice” flask and electronic scale for her consumption of the “Ice” and weighing the drugs respectively.

(8) She expressed remorse for her actions after being arrested and hoped to get a lesser punishment.

6. The drug exhibits were examined by Government Chemist, Dr Lam Kin-ming, with the following findings:

(1) Recovered from the defendant’s possession:

(i) 257.65 grammes of powder containing 107.74 grammes of ketamine;

(ii) 16.18 grammes of solid containing 8.99 grammes of cocaine.

(2) Recovered inside the premises:

(i) 159.21 grammes of powderand 0.16 gramme of a crystalline solid containing 107.66 grammes of ketamine;

(ii) 0.92 gramme of a crystalline solid and 0.18 gramme of a solid containing 1.03 grammes of methamphetamine hydrochloride.

7. Enquiries made with the representative of the landlord of the premises showed that Room J2 had been let to the defendant at HK$3,000 per month for a term of one year from 19 March 2014 to 18 March 2015.

8. The street value of the dangerous drugs was as follows:

(1) Ketamine, HK$50,876;

(2) Cocaine, HK$15,905;

(3) Methamphetamine hydrochloride, HK$464.

With the total value being HK$67,245.

9. The total net amount of ketamine, cocaine and methamphetamine hydrochloride are 215.40 grammes, 8.99 grammes and 1.03 grammes respectively.”

By way of personal background, the defendant is 24 years of age, she was born in Hong Kong in April 1991. The defendantreceived education up to Secondary Form 4 level in Hong Kong. She had previously worked in a telecom company and as a sales person.

At the time of her arrest the defendant was unemployed. Between September 2013 and March 2014, the defendant had worked as a dental assistant. The defendant is single. Prior to her arrest, the defendant lived together with her parents, sisters and a younger brother.

The defendant had a clear record prior to the commission of the present offences.

By way of mitigation, Mr Andrew Leung on behalf of the defendant urged the court to take into account her clear record and her guilty plea, which shows her remorse.

A mitigation letter from the defendant has been submitted to the court. In it, the defendant explained that she had been led astray by her former boyfriend. However, as has been pointed out by the courts before, personal and family circumstances of a defendant offer little mitigation in a serious case of drug trafficking.

By way of further mitigation, Mr Andrew Leung submitted on instructions that as much as half of the cocaine in Count 1 was intended by the defendant for self-consumption. The defendant allegedly bought the drug for HK$8,500.

In this regard, I note the guidance given by the Court of Appeal in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, where at page 79B-C, Stuart-Moore VP held as follows:

“Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.”

In the circumstances of this case, I indicated to Mr Andrew Leung that I am not prepared to accept the defendant’s mitigation without hearing evidence from the defendant.

Mr Leung sought a short adjournment to seek instructions, and at the end he told the court that the defendant would not give evidence to make good the assertion that she intended half of the cocaine in Count 1 for self‑consumption.

Accordingly, I am not inclined to give any discount for the defendant’s unproven claim that part of the drugs was for the defendant’s self-use.

Dealing firstly with Count 1, the defendant has been convicted on one charge of trafficking in dangerous drugs, namely 215.40 grammes of ketamine and 8.99 grammes of cocaine. The total quantity of narcotics involved is therefore 224.39 grammes.

Count 1 involves the defendant trafficking in two kinds of dangerous drugs which were kept in separate packets. In fairness to the defendant, I intend to adopt the “combined” approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence.

The methodology of this “combined” approach is first to calculate the applicable sentence for the most serious drug, which is cocaine in the present case, and then adjust the sentence upwards to take into account significant quantities of the other drug.

In the present case, I take the cocaine as the base of the sentence.

Sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in R v Lau Tak Ming [1990] 2 HKLR 370.

The quantity of cocaine seized in the present case is 8.99 grammes. According to the Lau Tak Ming case, for trafficking in up to 10 grammes of heroin, the proper sentence to be imposed after trial should be 2 to 5 years’ imprisonment.

Following the Lau Tak Ming case, I consider that the appropriate starting point for trafficking in 8.99 grammes of cocaine is 4 years and 8 months’ imprisonment.

Making an upward adjustment to take into account the other drug, namely 215.40 grammes of ketamine, I consider that the appropriate overall starting point for sentence for Count 1 in the present case should be 8 years and 4 months’ imprisonment.

I have tested this overall starting point using the three tests set out by the Court of Appeal in HKSAR v Chan Yuk Leong, CACC 318/2013 (Reasons for Judgment dated 8 April 2014) for checking if a sentence is manifestly excessive, namely, the “absurdity test” (paragraphs 12 to 13); the “conversion test” (paragraphs 14 to 17); and the “ratio test” (paragraphs 18 to 19).

In the present case, regarding the “absurdity test”, if the whole quantity of drugs seized (224.39 grammes) contained only the most serious drug, ie, cocaine, the sentence would have been around 12 years and 4 months’ imprisonment.

Applying the “conversion test”, one would arrive at a sentence of around 8 years and 2 months’ imprisonment.

Finally, applying the “ratio test”, one would arrive at the total of around 8 years and 3 months’ imprisonment.

In the circumstances, I consider that an overall starting point of 8 years and 4 months’ imprisonment after trial is appropriate for Count 1 in the present case. In coming to this view, I take into account that trafficking in two or more types of drugs should be considered an aggravating feature [see:HKSAR v Chan Yuk Leong (supra) at paragraphs 23 to 25].

I then have to consider the appropriate discount for the defendant’s guilty plea on Count 1.

The defendant’s plea on Count 1 is a late guilty plea. The defendant had initially pleaded not guilty and contested the admissibility of her admissions in a voir dire. However, after this court had ruled the admissions voluntary, the defendant changed her plea on Count 1 to one of guilty.

The voir dire lasted six days and involved the calling of no less than eight prosecution witnesses. The voir dire involved a full-blown attack on the integrity of law enforcement officers.

In the circumstances, I hold that the defendant is only entitled to an 18% discount for her late guilty plea, from the starting point of 8 years and 4 months’ imprisonment [see:HKSAR v Chan Wai Ming, William [2013] 6 HKC 552].

Accordingly, the defendant is sentenced to 6 years and 10 months’ imprisonment on Count 1.

Regarding Count 2, the defendant has been convicted on her own plea of possessing 0.92 gramme of a crystalline solid and 0.18 gramme of a solid containing 1.03 grammes of methamphetamine hydrochloride.

For this offence, I would adopt a starting point of 12 months’ imprisonment. This should be reduced by one-third to reflect the defendant’s timely guilty plea. This results in a sentence of 8 months’ imprisonment on Count 2.

Taking into account the totality principle, I consider it appropriate to order the sentences on the two counts to run wholly concurrently.

Defendant, please stand up.

You are sentenced to 6 years and 10 months’ imprisonment on Count 1, and you are sentenced to 8 months’ imprisonment on Count 2. The sentence on Count 2 is to run wholly concurrently with the sentence on Count 1.

The total sentence you have to serve is therefore 6 years and 10 months’ imprisonment.