HKSAR v. Hung Shuk Yee

HCCC 453/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 453 OF 2016

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

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COURT:

Miss Hung, you pleaded guilty to two counts of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 11 November of 2016, before the Eastern Magistrates’ Court, and you now stand formally convicted of those two charges.

The Summary of Facts has been read out to you again today and you have agreed them and they form the basis of your plea.

The background to your arrest on 6 April 2016 was that the police were carrying out an anti-narcotics operation and you were seen to be opening the door of Room 1106, on the 11th Floor of Hop Kwai House, Kwai Chung Estate in Kwai Chung. Mr Boyton has told me that you actually lived there. In your possession were also keys which opened a locked bedside table within that room and we can see that in the photographs. On the top of the bedside table, I could make out, at that stage, five mobile phones, although I note, in all, eight mobile phones were recovered from you which were all, according to the police, working.

Inside the locked bedside table there were 96 clear plastic resealable bags and what looks in fact like a plastic container which, in all, had a solid of 88.29 grammes, the narcotic content of which was 84.93 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is normally called. There was another plastic bag with just a very small amount of a solid with 0.14 grammes of cocaine within it and two further bags with some pellets, found to weigh 1.43 grammes, and with only 0.01 grammes of ‘Ice’. You also had, as you know, inhaling devices and electronic scales.

When you came into the flat, you had on you 1.71 grammes of ‘Ice’ in two plastic bags.

The street value of the ‘Ice’ that was found upon you, according to the police, was $27,718. The cocaine was a very small amount of $188.

You said at the time of your arrest for possession of dangerous drugs that it was for your own consumption. In support of that story, in the video-recorded interview, you said you regularly purchased drugs from somebody called Ah Kwan, although you could not provide his details to the police at that time, despite having been purchasing from him for, according to you, over a year.

You said you did not know how much you purchased each time but that it would be several hundred dollars worth or even a thousand dollars worth on each occasion. And you said that all of the empty bags found were used by you to store small quantities of dangerous drugs to facilitate your personal usage, and that the 13 pellets were for mixing or cutting the dangerous drugs and had been given to you by Ah Kwan, Mr Boyton mentioning today, you say, in order to make it taste and smell better.

You also told the police - it could have been a misunderstanding - but you told the police that you were married to a man who lived in the mainland. But despite being married to him, you could not provide his details either. You said you were a housewife and you were given $10,000 per month to live on.

You said that despite being a drug addict, the reason that there was so much ‘Ice’ in Room 1106 was because you had not consumed it all on every occasion and therefore it had accumulated. You did not know what the electronic scales were and you could give no assistance as to your daily or weekly dosage and, clearly, your instructions to Mr Boyton did not assist him either on that matter. But you now accept, that what you told the police in interview was not completely the truth.

In mitigation on your behalf, Mr Boyton maintains that you have instructed him that the majority of the drugs were for your self-consumption with the remainder to be used socially with others. He has explained that you are no longer with your husband and that you have a partner on the mainland who travels to Hong Kong rarely and that is why, when he is not here, you live with the friend who is the tenant of the flat in which the drugs were found.

You do say, and it is in your antecedents statement, that you have been taking drugs for a very long time, in fact, since you were 18, but that you consume it not on a daily basis but every few days. Because you do not want to be ravaged by the effects of consuming ‘Ice’, you tell the court that you purchase ‘Ice’ with a high purity content but from time to time, you become bored with it and it is put to one side. That was your explanation today for the presence of the drugs in the flat.

Despite his best efforts, none of what Mr Boyton has told the court, on his instructions, rings true, Miss Hung. You had what amounted to $27,000 worth of drugs and you cannot prove you had any income at all, let alone even that which you say your current partner gives you, and certainly not income from a part-time job. You appear to be driving a car which is not in your name and you appear not to, in fact, have any means of support other than trafficking in dangerous drugs, of which there is plenty of evidence.

You have been given the opportunity to prove those contentions and be examined on oath and you have chosen not to do so. But I do give you the benefit of the doubt on the fact that you have a drug habit and you may have consumed a very small amount of that which was recovered. But that would be very difficult for the court to quantify. So therefore, I will do as Mr Boyton suggested, and Mr Cheng conceded, and I will give you the benefit of the doubt on sentencing within my discretion.

The relevant sentencing guideline for the offence of trafficking in ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. That authority also discusses the effects of consumption of ‘Ice’ which I took into account, considering how long you have been, you say, consuming it. For trafficking in between 70 to 300 grammes of “Ice’, the sentencing guideline for the starting point after trial is between 11 and 15 years.

For trafficking in 84.94 grammes of ‘Ice’, taking into account your clear record up to the age of 44 and the other limited matters urged upon me by Mr Boyton, the starting point after trial will therefore be 11 years for Count 1.

There is also the 0.41 grammes of cocaine which, under HKSAR v Lau Tak Ming [1990] HKLR 370, would normally attract a starting point, after trial, of between 2 to 5 years for up to 10 grammes. I will treat this drug as if it was also ‘Ice’ and I will not add any additional time to your sentence on Count 1 to reflect the cocaine. So that makes a starting point of 11 years for Count 1.

On Count 2, you pleaded guilty to trafficking in dangerous drugs in a further 1.71 grammes of ‘Ice’ and under HKSAR v Tam Yi Chun, as quoted above, the starting point after trial for up to 10 grammes of ‘Ice’ is between 3 and 7 years and I consider the appropriate sentence is therefore 1 year.

The trafficking of dangerous drugs, Miss Hung, is a very serious offence. Deterrence is therefore an overwhelming consideration and whilst I have heard your personal circumstances, have not really heard a reason for the commission of this offence other than the fact that you are a drug addict. But even then, you are not a particularly serious drug addict because you seem, according to Mr Boyton, to function the rest of the time.

Unfortunately, there is not any mitigation other than that upon which I have already given you the benefit of the doubt, which can reduce this sentence any longer. But you did enter your plea at the very first opportunity and that is to your credit.

On Count 1, you will go to prison for 7 years and 4 months.

On Count 2, you will go to prison for 8 months.

The sentence under Count 2 is to be served wholly concurrently with Count 1, despite the fact that the drugs were brought into the flat from outside and were not necessarily part of the cache in Room 1106.