HKSAR v. Tang Hau Yan

HCCC 469/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 469 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 two counts of trafficking in a dangerous drug.

The Particulars of Offence in respect of Count 1 provide that on 4 July 2014 at Ma Miu Road, Yuen Long, New Territories in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 26.69 grammes of a crystalline solid containing 26.68 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The Particulars of Offence in respect of Count 2 provide that on 4 July 2014 at Ground Floor, No 3 Shui Tsiu Lo Wai, Tai Tong Road, Yuen Long, New Territories in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 12.95 grammes of a crystalline solid containing 12.86 grammes of methamphetamine hydrochloride.

The Summary of Facts admitted by the defendant provides, inter alia, that at 0120 hours on 4 July 2014, police officers from the Special Duty Squad of Tuen Mun District were on plainclothes patrol in Ma Miu Road in Yuen Long. They saw the defendant standing near a taxi stand. She was pregnant, and was carrying a gold-coloured shoulder bag.

The officers approached the defendant and after identifying themselves told her that they suspected her of being in possession of dangerous drugs. They took her to the junction of Ma Miu Road and Fu Lok Path where there was a streetlight. There, WPC 12943 searched the defendant’s shoulder bag.

In the bag she found a cigarette packet which contained two transparent resealable plastic bags containing a white crystalline substance. Suspecting that this was a dangerous drug, PC6818 told the defendant she was under arrest for trafficking in a dangerous drug, and cautioned her. The defendant replied that she had nothing to say.

The defendant was found to be carrying HK$3,928 and RMB600 at the time of her arrest.

At 0415 hours on the same morning, the defendant was taken to her home at Ground Floor, 3 Shui Tsiu Lo Wai, Tai Tong Road in Yuen Long. The door was opened with a key which had earlier been seized from the defendant. There was no-one inside, but the lights were on.

The premises were searched, and on a table beside the defendant’s bed was found a transparent resealable plastic bag containing a white crystalline substance, which was suspected to be a dangerous drug. On the same table, there was a small electronic scale and a white plastic box which contained 38 empty resealable plastic bags.

PC6818 re-arrested the defendant and cautioned her for trafficking in the dangerous drugs found inside the premises. The defendant had nothing to say. The defendant and the exhibits were taken back to Yuen Long Police Station.

The suspected dangerous drugs seized from the defendant’s handbag in Ma Miu Road, and from the table in her bedroom were sent to the Government Chemist for analysis. He found that:

(1) The two resealable plastic bags found in the defendant’s handbag contained 26.69 grammes of a white crystalline solid containing 26.68 grammes of methamphetamine hydrochloride; and

(2) The resealable plastic bag found on the defendant’s bedside table contained 12.95 grammes of a white crystalline substance containing 12.86 grammes of methamphetamine hydrochloride.

The defendant was subsequently charged with two counts of trafficking in a dangerous drug.

The street value of the drugs seized in this case is estimated to be HK$17,759.

By way of personal background, the defendant is 35 years of age. She was born in Hong Kong in December 1979. She received education in Hong Kong up to secondary 3 level. She was unemployed at the time of her arrest. She is single and lived alone.

The defendant has a total of 20 previous criminal convictions, six of which is related to dangerous drugs. The defendant does not, however, have any previous conviction for trafficking in drugs.

On 7 July 2015, the defendant was sentenced in FL/3019/15 to 6 months’ imprisonment for assault occasioning actual bodily harm. I was told by Mr Alan So that that offence was committed while the defendant was remanded in prison for the present offence.

By way of mitigation, Mr Alan So submitted on behalf of the defendant that she is remorseful. Furthermore, Mr So submitted that the defendant has a most unfortunate personal history. The defendant had a very unhappy childhood. She was brought up by her mother, who committed suicide in December 2011. The defendant became addicted to the 'Ice' drug in her 20s. The defendant gave birth to her first child in 2011, when her boyfriend was in jail. Unfortunately, on 1 January 2012, the baby died from an accident when she was sleeping with the defendant.

The defendant became pregnant again in 2014. Her boyfriend at the time committed suicide in April 2014, because his family objected to his proposed marriage to the defendant. The defendant blamed herself for the death of her boyfriend.

Two medical reports, have been submitted to the court. The defendant was diagnosed to have been suffering from drug-induced psychosis.

Whilst I accept that the defendant’s personal circumstances are unfortunate, it has been pointed out by the courts on many previous occasions that personal and family circumstances of a defendant offer little mitigation in a serious case of drug trafficking, which calls for a deterrent sentence in order to protect the public.

In the present case the narcotic involved in Count 1 is 26.68 grammes of methamphetamine hydrochloride, commonly known as the 'Ice' drug. The narcotic involved in Count 2 is 12.86 grammes of methamphetamine hydrochloride.

The dangerous drugs involved in the two counts were seized from the defendant and her residences in the course of a single enforcement operation and separately charged. In those circumstances, it is clearly appropriate to sentence the defendant on the total quantity of dangerous drug (ie 39.54 grammes of methamphetamine hydrochloride), rather than on the individual smaller quantities.

Accordingly, I should first consider the overall sentence to be imposed, based on the total quantity of narcotic involved in the two counts.

The offences in the present case were committed on 4 July 2014, ie, after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out the revised tariffs for trafficking in the 'Ice' drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in between 10 and 70 grammes of the 'Ice' drug, the guideline starting point after trial should be 7 to 11 years’ imprisonment.

In my view, following the guidelines in the Tam Yi Chun case and based on the total quantity of narcotic involved in the two counts, the proper overall starting point for sentence in the present case should be 8 years and 11 months’ imprisonment.

The defendant claims in mitigation that part of the drug charged under Count 2 (ie the drug seized at her residence) was intended for her own consumption.

The prosecution, very fairly, does not dispute that the defendant was a user of the 'Ice' drug and up to half of the drug involved in Count 2 was for the defendant’s self-consumption. Given that it is not disputed that the defendant was at the material time a drug addict and in light of her criminal record, I have no difficulty in accepting this claim. That being so, the defendant is entitled to some discount.

Half of the drug involved in Count 2 equals 6.43 grammes of methamphetamine hydrochloride. This amounts to roughly 16% of the total quantity of the narcotic seized in the present case (39.54 grammes).

In all the circumstances of the present case, I am of the view that the appropriate discount to reflect the fact that part of the drug seized was intended for the defendant’s own consumption is 10% [See: HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, paragraphs 19 and 20].

In arriving at the figure of 10%, I have taken into account that possession of 'Ice' for personal consumption is also an offence in itself. Furthermore, one must not overlook the latent risk that the portion of the drug intended for the defendant’s own consumption may be given or sent to others.

This brings the overall starting point from 8 years and 11 months’ imprisonment down to 8 years’ imprisonment.

I shall give the defendant the full one-third discount from the overall starting point for her guilty plea. This results in the total sentence of 5 years and 4 months’ imprisonment.

In order to achieve the appropriate totality of sentence of 5 years and 4 months’ imprisonment, I order as follows:

(1) In respect of Count 1, for the quantity of narcotic involved, I adopt the starting point of 8 years’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 1 is 5 years and 4 months’ imprisonment.

(2) In respect of Count 2, for the quantity of narcotic involved, I adopt the starting point of 7 years and 2 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 2 is 4 years and 9 months’ imprisonment.

(3) The sentence on Count 2 is to run concurrently with the sentence on Count 1. This results in a total sentence of 5 years and 4 months’ imprisonment.

Finally, I order the 5 years and 4 months’ sentence in the present case to run consecutively to the 6 months’ sentence the defendant is serving under FL/3019/15. Having considered the totality principle, I do not regard it as inappropriate to so order.