HKSAR v. Choy Le Man May

HCCC 317/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 317 OF 2016

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

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COURT: Ms Choy, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you pleaded on 26 October 2016 and stand formally convicted of that charge.

The Statement of Facts was read out into the court record at the time and you agreed them. They formed the basis of your plea.

The background to your arrest was that on 6 January 2016, you had reported an incident to the police of a robbery at your flat, but when you returned to your flat, which is situated on the 7th Floor, No 68A Un Chau Street, in Sham Shui Po, with a police officer, you appeared to be under the influence of dangerous drugs and so he searched you and your handbag and found a single packet of ‘Ice’. It was found to contain 45.1 grammes of methamphetamine hydrochloride. You said, at the time of your arrest, you had purchased it for $2,500, but you accepted in the Summary of Facts that the street value of those drugs was $13,665.

I also note that you agreed a number of other matters which you later denied in evidence and I will come to that later.

You were interviewed at 1743 and 1929 hours on the next day, 7 January, at which time, you appeared to be fully co-operative, although it is clear from the CSD memo submitted to the court that you may still have been under the influence of amphetamine at the time. The extent to which you were under the influence of dangerous drugs, however, is not known.

Even so, in interview, you told the police that you had been consuming dangerous drugs for one year, that you had purchased the drugs found in your handbag either two or three days prior to the interview, that you had consumed 0.5 gramme of dangerous drugs, three or four times per day; that you worked part-time as either a cleaner or a waitress and were paid just $300 per day, but did not have work all of the time and had no fixed work location.

In mitigation, Mr Polson raised the issue of self-consumption on your behalf and therefore the matter was adjourned for a Newton hearing and as you have raised this issue, it is for you to satisfy the court on a balance of probabilities that some part of the dangerous drugs in your possession that day were for your own consumption and what that amount would be.

In the adjourned hearing, before this court on 9 November, you gave evidence on that issue. At that time, you said that a significant quantity of the dangerous drugs recovered from you was for your own consumption. You gave evidence-in-chief that you took 0.5 gramme each time you took a hit.

Initially, in evidence, you said you consumed the drug once per day but later you told the court that you took the dangerous drugs before you went to work at 7 pm in the evening and after you had returned from work at 7 am. You also mentioned that you sometimes took dangerous drugs whilst at work. But if the dangerous drugs you took at work came from other sources, that would mean that you took about 1 gramme of ‘Ice’ per day from your own resources. You said you consumed ‘Ice’ every day and therefore you would consume about 7 grammes per week.

You also said that you would meet up with friends, two to three friends, once a week and share your ‘Ice’ with them in return for meals and for other drugs but that you did not sell ‘Ice’ to them. At these meetings, you would also consume about 0.5 grammes and so would your friends, although you mentioned that they may consume a little more. Given that the meetings with friends appeared to be a mutual swapping of dangerous drugs resources, they do appear to cancel each other out if what you have told the court is true, and that would mean that your consumption rate was approximately 7 grammes per week. If that was so, the 45.1 grammes of ‘Ice’ found upon you would last about six weeks and four days.

However, you also told the court that you felt that of the 45.1 grammes found upon you, you would expect half of it to be consumed by yourself and half by your friends. If that were the case, the 45.1 grammes would be consumed within three weeks and two days, at which point, you would need to purchase more to feed your twice-daily habit.

You say that you purchased the 45.1 grammes of almost pure ‘Ice’ for $2,500, despite you having agreed that its street value was $13,665. If you needed to purchase new dangerous drugs every three weeks, according to you, you would have to find 2,500 per month and an extra 2,500 every other month to feed your habit. In court, you said you worked as a cleaner in a nightclub in Tsim Sha Tsui from 7 pm to 7 am, six nights a week with Sunday night off. You said that you earned $10,000 per month plus tips of 2,000 to 3,000 on occasion. That was a bare assertion.

In interview, however, you volunteered to the police you were a part-time worker. You said you sometimes worked as a cleaner and sometimes worked as a waitress and were paid just $300 daily, but that you did not have work all of the time or a fixed location for work. That was a wholly different story to the one that you told the court.

Paragraph 1 of the Summary of Facts, which you agreed and which you are bound by, states that you were a cleaner and waitress earning $300 per day. I do not accept that, 24 hours after having taken 0.5 grammes of ‘Ice’, you would have been so confused as to forget that you worked as a cleaner at a nightclub, earning between $10,000 and $13,000 per month.

If what you said in interview and agreed to when you entered your plea was, in fact, the truth, then the maximum earnings you would have received were in the order of 7,200 per month, or more likely than not, Ms Choy, it was much less. How then could you afford a drug habit of between $2,500 and $5,000 per month, according to you, let alone almost 14,000 which was the actual street value of the dangerous drugs, against the background of you saying you paid $2,500 in rent, 2,000 to 3,000 per month for food and other household items and still needed to pay for travel, utilities and buy clothes?

On your behalf, counsel had said that contrary to the antecedents statement, you are a long-term abuser of drugs. He mentioned that you had a failed marriage behind you and are the mother of three children who live with their father and you are now 42 years of age and, as we know, in some way or other, worked as cleaner.

Whether you worked full-time or part-time as you suggested in your antecedents statement, you could not afford $14,000 worth of drugs, and I find that on either account put forward by you, you must have been trafficking in them for profit. There was no other evidence before me which could have provided you with sufficient money to pay for those drugs, even at a sensibly discounted rate.

The relevant sentencing guideline for the offence of trafficking in ‘Ice’ is in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. That authority also discusses the effects of the consumption of ‘Ice’. In that case, Stock VP referred to Attorney General v Ching Kwok Hung, CACC 15/1999, where it was said that ‘Ice’ can be used and reused; 1 gramme could be reused 10 to 15 times. Its effect lasts two to 12 hours with an average being somewhere in the middle.

An ‘Ice’ addict, as Mr Polson suggested, needs far less than a heroin addict but, as Mr Polson suggested, would require larger and larger doses to obtain the same effect as time goes by. But importantly, that dependence can lead to a psychotic state, insomnia, anxiety, depression and fatigue.

According to you, Ms Choy, you were permanently under the influence of ‘Ice’, having only two hours sleep per day, but suggesting at the same time, you could hold down a full-time manual job with good pay. Yet you say it took you just days to come off the drug whilst in prison and mentioned no significant effect of having done so, even though the type of abuse you have given evidence of could have led to paranoid disorder and death.

I do not accept that you consumed anywhere near the amount which you suggested. I do accept, as do the prosecution, that you have taken ‘Ice’ and that you did do so on the day in question.

You maintain that half of the drugs found upon you was for self-consumption. The leading case on the suggestion that a trafficker held some part of the trafficked drugs for self-consumption is HKSAR and Wong Suet Hau [2002] 1 HKLRD 69: “Where there is no readily discernible quantity of drugs for personal use, the court should be slow to accept a bare assertion. The court needs to consider a number of factors”.

Those are: i)the quantity of the drugs and their value; ii)the general circumstances, including how the drugs are wrapped and how many wraps or packets are found; iii)where the drugs were discovered, whether there was a residential address owned or rented in the trafficker’s own name or someone else’s name, or whether they were being carried in public; iv)the presence of paraphernalia associated with drugs including, on the one hand, items used for packaging, weighing and diluting drugs, and on the other, items which are used for self-consumption of drugs; v)whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question; vi)the explanation given by you on arrest, vii)your general means and your ability to pay for the drugs otherwise than by trafficking in them and viii)your criminal record, if any, in relation to previous drug offences.

I have taken all of that into account. After hearing your evidence, considering the Summary of Facts and what Mr Polson has been able to say on your behalf, I do not accept that any part of the drugs you had within your handbag that evening was for your personal consumption.

That is because you were already high on ‘Ice’ when you made your report to the police. That hit had not come from the drugs in question as the drugs which were found upon you were in a single sealed packet and did not appear to have been opened and reopened. There was no paraphernalia for your personal consumption in your own flat, even though you were high on ‘Ice’ at the time. That leads me to believe that when you do have the opportunity to consume drugs, it is done at some other location and therefore it is intermittent and not, as you say, a twice-daily trip.

The drugs were found in your handbag which you had carried in public. You had in your possession in your flat a significant number of resealable bags and electronic scales which I am satisfied were to be used for onward sale of drugs and not to measure out drugs for personal use for yourself or for your friends.

You did not have the financial means to purchase the drugs you had in your possession, nor the financial means to feed the habit you have suggested to the court. Your physical state was and is such that you could not have been consuming what you say you did, and as a consequence, I am not prepared to make any reduction for personal consumption in respect of the 45.1 grammes found upon you.

For trafficking in between 10 and 70 grammes of ‘Ice’, the sentencing range is between 7 and 11 years. For trafficking in 45.1 grammes of ‘Ice’, the starting point after trial is therefore 9 years and 4 months. Your mitigation has necessitated the holding of a Newton enquiry which required further court time. Your version of events was wholly disbelieved and the court is entitled to reduce the discount you would receive for your plea of guilty according to R v Lee Chiu Pang [1995] 2 HKC 523 and HKSAR v Lee Wai Keung ([2012] 2 HKC.

Ms Choy, the trafficking of dangerous drugs is a very serious offence. Deterrence is therefore an overwhelming consideration. Whilst I have heard your personal circumstances and the reason for commission of this offence, in the face of such a serious offence, there is nothing which has been said on your behalf which could warrant a more lenient course than would otherwise be the case.

You would normally receive a one-third discount for your plea of guilty and the sentence which I would pass if that were the case would be one of 6 years and 2 months. But I intend to reduce that discount, in my discretion, under R v Lee Chiu Pang, to reflect the additional court time taken up with your assertion that half of the drugs was for your self-consumption and the remainder was trafficked upon a social basis, and you will go to prison for 6 years and 5 months.