HKSAR v. Yu Ka Po

HCCC 31/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 31 OF 2016

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

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COURT: Yu Ka-po, you have pleaded guilty today to one count of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and also one count of possession of dangerous drugs, contrary to Section 8(1)(a) and (2) of the same ordinance.

On 11 August of last year, you were found to be leaving a flat in Sau Wah House on the Sau Mau Ping Estate and you had in your possession a small pink bag which contained the items referred to by Mr Melwaney and which included a larger packet of “Ice” hidden in a branded cardboard box which was used to conceal the “Ice”. And then there were four smaller packets of “Ice” plus numerous resealable plastic bags and other items for weighing out and consuming that “Ice”, and also as we have heard, the paper slip. You were clearly on your way out to traffic in those drugs.

In interview, you said that you helped someone called Wong Chi-hung to deliver “Ice”, but you admitted that both you and Kwok Wai-lung were consumers of “Ice”. You said that you had taken the bag and its contents to the flat that day. The court does not know whether that was to supply drugs to Kwok. You also said that the drugs you carried had cost $16,800 and that after sale, you will get a percentage of the profit.

The street value of the drugs in your possession was HK$68,886 for the “Ice” and $215 for the cocaine in the bin.

You did not say what percentage was that you were going to receive, but given the street value of the drugs even 10 per cent would have left you with a reasonable sum of money.

I note from your antecedents statement that you are a woman of previous good character and you are now 22 years of age, having left school after Form 5. You were employed previously, firstly as a waitress and then as a salesperson. You also said that the moneys found on you, the $2,733.40 at the time of your arrest, were your wages from your legitimate work. And so, you were not in need of money and clearly had a roof over your head as you were living with your sister at the time. I have taken into account everything that Mr Sher had said on your behalf and I have read the letter from your sister and from the social worker, Miss Cheung, as well as the other documents that you have provided.

This offence took place in August 2015. I took into account the fact that you had just separated from your husband who is much older than yourself, but that the marriage was extremely short and that you had fallen into another relationship very quickly, as I see that your lover lived in the same block of flats as your matrimonial home. You said you had started consuming drugs in early 2015 and had been under the influence of the drug dealer and it was his influence which caused you to traffic in drugs. Despite that, you held down a good job at a salary of 15,000 per month and you lived with your sister, so you were not in any financial difficulty. Indeed, you clearly helped your family financially. Although you left school after Form 5, you had good attendance and you had done well.

So it is all the more sad that you find yourself in this situation, with the career prospects you had would have been bright. This is a very hard lesson for you to learn and it hurts the whole family, not just yourself. But unfortunately, the case authorities are such that there is little personal mitigation which can alter the sentence which I must pass upon you.

Mr Sher has suggested on your instructions that part of the “Ice” in your possession was for your own consumption. He said on your behalf that you would have consumed 17.28 grammes per month; that is the amount in the four packets found upon you at the time of arrest. That is a significant amount of drugs. This was a bare assertion and you declined the opportunity into come to the witness-box and explain your consumption when I offered you the opportunity to do so.

A number of factors mitigate against that suggested consumption rate or that the drugs you had in your possession on arrest contained any element of “Ice” for personal use. The drugs were, for example, still in bulk form, save for the four packets. You had electronic scales and very many small resealable plastic bags with you for onward sale, plus a list of four names with the word “Ice” written next to them. The packets which were already weighed out, could have been for them.

You had just left your lover's flat where there was clear evidence of consumption of “Ice” already and although you had paraphernalia for consumption within your bag when you left his address, it could easily have been as a result of having consumed “Ice” in the flat rather than as an indicator of the intent to consume part of what you carried. However, I do acknowledge that you are a person who consumes “Ice” and the prosecution accept that.

According to Attorney General v Ching Kwok Hung CAAR 15/1990, one-tenth of a gramme of “Ice” would be sufficient for three to four hits and “Ice” can be used and reused with it effects lasting between two and 12 hours, the average being at the middle of that range. You held down a full-time job and lived with your sister at the stage you were arrested. Further, you told the police you were not a drug addict, but the paraphernalia you had with you at the time of the arrest, as I have already said clearly indicates you were consuming some “Ice” yourself. I do not believe it was 17.28 grammes per month, which would amount to between 500 and 700 hits, and I am not impressed by the suggestion that you were to consume that amount.

Nor am I convinced that you were to consume any part of the drugs in your possession, but giving you the benefit of the doubt, despite your refusal to give evidence on your own behalf, I believe a more likely personal consumption rate would have been in the order of just one gramme per month. I say that because your consumption would be social and out of work hours which presumably limits it to the weekends as the effect of consumption can last for hours. One gramme would be between 30 and 40 hits; that is a significant number of hits in one month for a person who is not an addict and who has a full-time job and presumably does not consume drugs in her sister's home.

For trafficking in 209.28 grammes of “Ice” on 11 August 2015, the guideline case is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the trafficking in between 70 and 300 grammes of “Ice”, the range of sentence is 11 to 15 years. For trafficking in 209.28 grammes, therefore the starting point after trial would be 13 years and 6 months. Deducting one gramme of “Ice” has no effect on that starting point and therefore I will not take into account the latent risk factor in that element.

In this case, you were also in possession of 0.11 grammes of cocaine which had been thrown into the rubbish bin at the flat. You said at one time that you had intended to give it to your lover's sister, but she refused it and then you threw it away. But you did say, originally in the papers, that you intended to consume the cocaine yourself. The papers suggest you are an “Ice” addict and certainly had the paraphernalia for consuming “Ice” and you now say you did not use cocaine.

In HKSAR v Mok Cho Tik CACC 165/2000, the Court of Appeal said the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in their possession would be in a range of 12 months to 18 months. You are charged with mere possession presumably on the basis that you had originally said it was for your consumption. Otherwise, of course, this would be a trafficking offence.

In those circumstances, it is appropriate to take a starting point at the lower end, of 12 months' imprisonment after trial. But in the circumstances of this case, you also admitted that you attempted to supply it to someone else and there is a clearly a risk that you could have done so. For that latent risk, I will enhance the 12 months by a further three months because it was a very small amount of drugs, and that would make 15 months.

Looking at totality: on Count 1, for trafficking in dangerous drugs in 209.28 grammes of “Ice”, you will serve a term of imprisonment of 9 years after discount for plea. On Count 2, you will serve a term of imprisonment of 10 months after discount for plea. That would make a total sentence of imprisonment of 9 years and 10 months upon plea. But if the 0.11 grammes had been added to the 209.28 grammes of “Ice”, even though they are different drugs, the sentence I would have passed on Count 1 would have remained the same.

Accordingly, you will go to prison for 9 years on Count 1 and to 10 months on Count 2 to be served concurrently with the sentence I have passed on Count 1. So it will be 9 years in total.