HKSAR v. Cheung So-sze

HCCC 127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 127 OF 2014

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REASONS FOR SENTENCE
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1.On 21 March 2014, the defendant was committed to stand trial in the Court of First Instance in respect of one count of trafficking in, and another count of possession of, a dangerous drug. Her trial was set down to take place from 3 to 11 December 2014 with a pre-trial review scheduled for 6 October 2014.

2.On 10 September 2014, the solicitors for the defendant informed the Court that she would plead guilty to the two counts on the indictment.  This was confirmed at the pre-trial review and her plea and sentence were set down for 3 December 2014.  On that day, formal pleas of guilty were entered in relation to the two counts and a summary of facts was read and agreed.  It was indicated that the defendant had agreed to cooperate with the authorities and provide information in relation to the case.  She had given a non-prejudicial statement dated 23 September 2014 which resulted in prosecution action being taken against her co-accused.  She agreed to be a prosecution witness at the trial of her co-accused.  Her sentence was adjourned on several occasions until she had given evidence in the other case so that it could be taken into account when she was sentenced.

3.The co-accused was committed for trial in the Court of First Instance and eventually on 12 October 2015 he pleaded guilty to a single count of conspiracy to traffic in a dangerous drug.  The case against him was primarily based, if not solely,  on the evidence of the defendant.

4.The facts giving rise to the trafficking offence against the defendant were that on 19 September 2013 at 10 pm she was intercepted by police officers leaving a flat holding four bags containing three mooncake boxes in which were 28 plastic bags containing a total of 670.49 g of a solid with 330.44 g of cocaine and one paper box in which were 26 plastic bags containing a total of 596.17 g of a solid with 329.95 g of cocaine.  Upon arrest she said that she was helping someone to bring the Ho Lok (an expression for cocaine) to someone else. 

5.With keys found on the defendant, the police officers gain entry to the flat she had left and found an electronic scale and sealing machine together with a lot of resealable plastic bags.  She said she was not clear about the things that were found in the flat.  She subsequently explained that she had received a call from someone telling her to go to the flat and obtain the key that was stored in a refrigerator at a nearby supermarket to gain access to the flat and obtain the four bags of drugs and take them to a location where she was to leave them as instructed.

6.The retail value of the cocaine seized was estimated at the time to be $1,797,391.

7.The other offence of possession concerned the location of a small quantity of cocaine found in a sanitary napkin in the possession of the defendant when she was in custody.  It occurred on 21 March 2014 and the drugs involved were 3.52 g of a solid containing 1.33 g of cocaine.

8.It is relevant to briefly summarise the facts agreed to in the case of the defendant’s co-accused when he pleaded guilty to the offence of conspiring with the defendant to traffic in the quantity of cocaine as particularised in the count to which the defendant pleaded guilty. 

9.It was stated that the defendant became acquainted with her co-accused in 1999, and in January 2013 he offered a job to her to clean flats which she did from time to time.  On 18 September 2013, over the telephone he instructed her to clean the flat in question and collect the key of the flat from a freezer at a local supermarket.  The next day he instructed her over the telephone to buy three boxes of mooncakes and to put the cocaine stored in the flat into the boxes.  She did as she was told, but found there was insufficient space in the three boxes to store all the cocaine so she placed some in another box.  Again over the telephone, he instructed her to take the cocaine to the podium downstairs and leave it there for someone to collect later.

10.As is apparent from the facts agreed by the defendant’s co-accused, her evidence was a crucial factor in the plea and conviction of her co-accused.  For that she is deserving of a further discount to her sentence in addition to the discount for her plea of guilty.

11.The defendant is now 36 years of age.  She left school at form five and worked as a salesperson and clerk.  Since June 2013 until the time of the offence, she had been unemployed.  At the time of the offence, she lived with her boyfriend and his family.  She has some minor offences for possession of a dangerous drug and assault in 1996 and 1997 respectively, and other than that she has not been in trouble with the law before this offence.  Since her arrest her family, consisting of her mother and father and brother and sister, have been very supportive and she has acknowledged in her mitigation to me her regret and remorse for her behaviour. I was informed that she developed a drug addiction to cocaine and she got involved in this offence because of it. 

12.There is very little meaningful mitigation that can be advanced on her behalf except for her plea of guilty and her cooperation with the authorities by implicating her co-accused and her preparedness to give evidence for the prosecution at his trial.

13.The quantity of drugs involved was substantial with a total narcotic content of 660.39 g.  The guideline case of R v Lau Tak Ming [1990] 2 HKLR 370 provides for a sentence of a term of imprisonment of 20 years and 3 months after trial for trafficking in this quantity of cocaine.

14.The possession offence was separate and distinct offence but arose because of an examination of her personal property when she was being transferred within the prison system.  It was not a situation of her bringing drugs into prison but the finding of the drugs in her personal property that had been seized from her when she was arrested.  The sentence for this offence is 6 months’ imprisonment to be served concurrently with the sentence imposed for the trafficking offence.

15.The policy of the courts has been to recognise useful assistance rendered to the authorities by a defendant as a mitigating factor when sentencing the defendant for the offence for which he or she has been convicted.  It is important to encourage persons to cooperate and assist the authorities in the further detection and prosecution of crime.  In HKSAR v Chan Sau-hing & Anor, CACC 211/2001, unreported, Cheung JA, giving the judgment of the Court, said at paragraph 30:

“In our view, witnesses should be encouraged to come forward and give evidence. In the case of a defendant who wishes to do so, he is entitled to expect that his sentence would attract a further discount because of his willingness to give evidence against the co-defendants. Unless it can be demonstrated clearly that a certain aspect of his evidence is totally different from what is contained in his witness statement, we are of the view that the usual 45% to 50% discount should be given. Judges should be circumspect in disallowing the proper discount. …”

16.In the present case, the defendant, upon pleading guilty to the trafficking offence, cooperated and assisted the authorities by identifying her co-accused and making a detailed statement of the crime involved.  It resulted in her co-accused being charged for conspiring with her to traffick in dangerous drugs and to his subsequent plea of guilty to the charge.  The admitted facts were based on her account of what took place and it is clear that without her cooperation and assistance her co-accused would not have been brought to justice.  Even though she did not give evidence, her assistance was highly valuable and crucial in the successful prosecution of her co-accused. 

17.In the circumstances of this case, the defendant is entitled to a 50% discount on her sentence.  I adopt the starting point of 20 years and 3 months’ imprisonment for the trafficking offence which I reduce to 10 years and 1 month’s imprisonment.  Her sentence of 6 months’ imprisonment for the possession offence will run concurrently with the sentence for the trafficking offence.  I therefore sentence the defendant to 10 years and 1 month’s imprisonment.

Mr Bobby Cheung, SPP, of Department of Justice, for HKSAR

Mr Francis Cheng, instructed by Eli K. K. Tsui & Co., assigned by Director of Legal Aid, for the defendant