HKSAR v. Yan Mi Mi

DCCC 93/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 93 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.Defendant appeared before me this afternoon and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).  The subject matter of the dangerous drug is 13.65 grammes of a mixture containing 10.68 grammes of heroin hydrochloride.

Facts

2.According to the Summary of Facts which was admitted by defendant, on 1 November 2016, PC16319 (PW1) and party were conducting anti-narcotics operation at Mongkok district.  At about 3:15 pm, PW1 saw defendant acting furtively at the junction between Ferry Street and Dundas Street by looking around nervously and clenching her right fist.  PW1 intercepted defendant for inquiry.

3.Upon search, it was found that defendant was holding a transparent plastic bag in her right hand which contained 30 pellets of suspected heroin (Exhibit 2).  Another 16 pellets of suspected heroin (Exhibit 3) were found in defendant’s mouth and she was then arrested.

4.Under caution, defendant claimed that she just started working and she sold the white powder in her hand and mouth for others, earning $800 per day.

5.In the subsequent video-recorded interview, defendant admitted, inter alia, that:-

(a) On 31 October 2016, she knew a male at a park in Shanghai Street who offered her a job.

(b) On 1 November 2016, the said male gave her a plastic bag containing pellets of suspected dangerous drugs and asked defendant to sell at price of HK$240 for each pellet.

(c) She knew the dangerous drug seized was heroin.

(d) Prior to her arrest, she had not sold any pellets to anybody.

(e) She could earn HK$800 if she worked till 2200 hours on that day.

(f) She was a drug addict and would spend HK$200 for her daily consumption.

6.On 6 November, defendant ejected 12 pellets of suspected heroin (Exhibit 4) while she was detained at the Tai Lam Centre.  Under caution, defendant admitted that those pellets were white powder and they were for her own consumption.  When she was confronted by the police on 31 October 2016, she was so scared that she swallowed those 12 pellets. 

7.On 7 November 2016, defendant ejected another pellet of suspected heroin (Exhibit 5).  Under caution, defendant claimed that the pellet was white powder and it was for her own consumption.  She should have swallowed 13 pellets on 31 October 2016.  She has ejected 12 pellets on 6 November and the one she ejected on 7 November was the last one.

8.The total estimated value of the heroin seized is around HK$8,020.68.

Criminal records and personal background

9.Defendant has a total of five previous criminal records and two of which are possession of dangerous drugs both recorded in 2004.  Defendant is now 58 years old.  She only received an education up to Primary 2 level.  She was once married in 1979 but later divorced in 1991.  Although defendant has a son and a daughter both in their 30s but she had no contact with them for the last 10-odd years.  Defendant’s own parents have passed away and because of her drug problems, she was so ashamed to contact with her siblings.  Defendant now lives together with a male in a cubicle room in Tai Kok Tsui.

Mitigation

10.Miss Chan, the solicitor for defendant, told the court that in her last criminal conviction, defendant actually went to a drug addiction treatment centre organised by a Christian organisation in Lamma Island and stayed there for 15 months.  However, she relapsed to drug again after discharge from the centre. 

11.Previously, Miss Chan told the court that defendant worked in a vegetable store, earning a stable income of $12,000 per month, out of which she spent about $200 a day by taking heroin.  Unfortunately, in May 2016, the vegetable store closed down for business and she became immediately unemployed and she was desperate to find jobs as she did not want to live on public assistance.  On the day before her arrest, as she had told the police, she bumped into a stranger in a park in Shanghai Street who offered her the job to sell the drugs for a monetary reward and she just could not resist the offer due to momentary greed and her dire financial difficulties.

12.Miss Chan also urged the court to consider further reduce the sentence for self-consumption.  In so doing, Miss Chan submitted to court a urine test result by the CSD when defendant was admitted to Tai Lam Centre for Woman on 3 November 2016 which confirmed the presence of opiate in defendant’s urine.

13.Based on the market value as disclosed in the Summary of Facts and based on the instruction by defendant that she used $200 to purchase heroin per day, Miss Chan estimated that the portion for her self-consumption would be around 0.266 grammes.  Miss Chan, however, acknowledged that this portion is relatively small and even insignificant but still urged the court to reduce the sentence by perhaps one month or so, taking into account the old age of defendant.

Sentencing Considerations

14.Drug trafficking is of course a very serious offence and because of this, the Court of Appeal has repeatedly emphasised that whoever takes part in such an evil business irrespective of his or her age or background or the circumstances in which the offences are committed can expect no mercy from the court. 

15.The present case involves trafficking in heroin, and according to the case of Lau Tak Ming & Another [1990] 2 HKLR 370, for a quantity between 10 to 50 grammes of heroin, the tariff sentence is between 5 years to 8 years’ imprisonment.  If the whole quantity of a mixture containing 10.68 grammes of heroin hydrochloride was taken into consideration, in this case, the starting point should be 5 years’ imprisonment.

Self-consumption

16.The defence has raised the mitigation that part of the drugs in the present case is for the purpose of her self‑consumption.  The Court of Appeal has recently in the case of HKSAR v Liu Ming Sze (Unreported) CACC 103/2016 made it plain that the discount of 10% to 25% for self-consumption as stated in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 only applies when the portion of self-consumption is significant.

17.In considering such a submission, I also refer myself to the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 in which the Court of Appeal has suggested a whole list of factors to consider whether to accept a submission that a significant proportion of drugs was intended for self-consumptions.

18.After carefully considered all these factors in the round and bearing in mind the minute portion of the quantity of drugs in relation to self-consumption, I decided not to reduce the sentence for the purpose of self-consumption for these reasons. 

19.Firstly, in this case, Exhibit 4 to 5 contained only 1.66 grammes out of the total 10.66 grammes of heroin hydrochloride which is less than 16% of the overall quantity.  Thus, even if accepting that this portion of self-consumption as once told by defendant to the police was true, it cannot be said to be significant.

20.Secondly, I have serious doubt as to the veracity of this claim that Exhibit 4 to 5 were for the purpose of self-consumption.  These Exhibit 4 to 5 were wrapped into 13 pellets alongside with the 30 pellets (Exhibit 2) and 16 pellets (Exhibit 3) which defendant was found to possess for the purpose of trafficking.  If defendant now said that the 13 pellets were purchased on the day before this present arrest, the question begs that why she still needed to take the offer to sell the drugs in order to feed her drug habits, and one wonders where did she find the money to purchase Exhibit 4 to 5 when she had long been unemployed and so desperate to find a job.

Conclusion

21.All in all, I reject her claim that part of the drugs is for self-consumption.  In the end, the only effective mitigation is her pleading of guilty for which she was entitled to a full one-third discount.  I would use 5 years as the starting point and after the reduction for her plea, the sentence is 40 months’ imprisonment.