HKSAR v. Sheung Chun Yin

HCCC 246/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 246 OF 2016

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

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COURT:

On 4 July 2017, the defendant pleaded guilty to the two counts on the indictment. Both counts were for trafficking in dangerous drugs. Count 1 alleged that she, on 20 September 2015, outside Tin Hor House, Tin Ping Estate, Tin Ping Road, Sheung Shui, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 14.26(14.20?) grammes of a crystalline solid and five tablets containing methamphetamine hydrochloride.

Count 2 alleged that on 20 September 2015, at Room 2510, Un Fung House, Un Chau Estate, Un Chau Street, in Cheung Sha Wan, in Kowloon, she unlawfully trafficked in a dangerous drug, namely 21.8 grammes of a crystalline solid containing 21.5 grammes of methamphetamine hydrochloride.

Returning briefly to Count 1, I should indicate that the quantity of methamphetamine hydrochloride in that count was 14.16 grammes.

A Summary of Facts was read in court on 4 July and was accepted by the defendant. That Summary of Facts revealed the following.

As to Count 1, at around 8.10 pm on 20 September 2015, the defendant was intercepted by police officers outside the address which appears in the indictment. She was eventually searched and inside her bra was found a plastic bag containing a crystalline solid. Subsequent analysis established that this was 14.1 grammes of methamphetamine hydrochloride plus five tablets containing a minute quantity of methamphetamine. The defendant was arrested and remained silent.

Her home at Room 2510, Un Fung House, Un Chau Estate, Sham Shui Po, was subsequently searched. Next to a bed in the dining room was a plastic cabinet inside of which was a plastic bag containing another crystalline substance which, upon subsequent analysis, was found to be 21.5 grammes of methamphetamine hydrochloride.

In a subsequent video-recorded interview, the defendant admitted that when she was apprehended in the street, she was on her way to deliver the methamphetamine hydrochloride to one Fei Pan. She accepted, in the same interview, that she resided at the premises described in Count 2 on the indictment and that the dangerous drugs and electronic scales found therein were hers. She suggested that those drugs were for her own consumption. She alleged in this respect that she consumed ‘Ice’ twice per week.

It was accepted in the Summary of Facts that the estimated street value of the total quantity of dangerous drugs was in excess of $11,500.

It is accepted by her plea of guilty to Count 2 that the applicant(defendant?) was trafficking in those drugs.

The defendant is aged 45 and has been unemployed since 1999. She is in receipt of CSSA allowances. She was born in Chongqing in China and she married in 1994 but is now divorced. She has no criminal convictions.

In mitigation, Mr Bullett, on her behalf, indicated the following: that the initial admission made by the defendant that she used methamphetamine hydrochloride on two occasions per week was in fact incorrect. He told me that she was and remains a drug addict and that the quantity found in her premises, namely 21 grammes, would last her approximately two months. It was purchased in bulk because it was cheaper to do so, but that purchase was funded by her boyfriend.

Mr Bullett submitted that most of that quantity of 21 grammes of methamphetamine hydrochloride found in her premises was for her own consumption and he invited me to adjust the ultimate sentence to reflect this fact. By ‘most’, when questioned by me, he suggested at least 60 per cent was for her own consumption. It was properly accepted by the prosecution that the defendant was drug-addicted and that some, albeit a small part, of that cache of drugs would have been for her own consumption.

On 4 July, in the course of mitigation, I indicated to Mr Bullett that I could not, in all of the circumstances, accept the submission from the Bar table that a substantial proportion of up to 60 per cent of those drugs was for her own consumption, absent evidence in support of that assertion. It was apparent to me then, and now, that the defendant was caught red-handed delivering the amount of drugs in the 1st count on the indictment which is in fact the very same drug found in her accommodation. There was an electronic scale found in those premises. The amount of drugs in her premises was a significant quantity and indeed a significant quantity in terms of value for a person who was, at that time, unemployed and in receipt of social welfare payments.

I did on that occasion indicate to Mr Bullett that if he wished for a date to be fixed to conduct a Newton inquiry to determine this issue fully, that could be accommodated. In fairness to Mr Bullett, he took some time to take instructions from his client but advised me that that was not necessary in the circumstances. In a subsequent submission following he taking instructions from his client, he advised me that it was still open to me to allow a discount for personal consumption based on the facts as they then were. This, however, was not in any way quantified.

In the course of Mr Bullett’s submission, I was referred to several authorities. They are HKSAR v Law Num Chun [2014] 5 HKLRD 500, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, HKSAR v Liu Ming Sze [2017] 1 HKLRD 2017. I have also considered, in the course of my own researches into this matter, HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.

Having considered all of these authorities, I am satisfied that for this defendant to be afforded a meaningful discount from the sentencing starting point because of an allowance for self-consumption of methamphetamine hydrochloride in Count 2, it requires to be apparent to me from all of the materials that the amount for self-consumption is a significant proportion of the total. As I have indicated, that submission applies only to Count 2. That observation, to me, is supported by the authorities to which I have referred.

The present defendant, to my mind, falls at the first hurdle because no attempt, other than counsel’s submission from the Bar table, has been made to quantify what was a significant proportion of that quantity of dangerous drugs as will justify the application of the range of discount suggested in Chow Chun Sang which is referred to extensively in the first three authorities. Nevertheless, as I have indicated, the prosecution has sensibly conceded that some of these drugs were for her own consumption.

In approaching sentencing, I take the view that given the proximity in time and place of both counts that the appropriate approach for sentencing is to adopt a notional starting point which properly reflects the totality of the drugs in both counts and to consider whether I should make some adjustment thereafter for self-consumption. The defendant, of course, is entitled to a full discount of 20 per cent for her plea of guilty.

Taking all matters into account, including the concession made by the prosecution, I have considered that a notional overall starting point for sentence for both counts, that is both quantities of methamphetamine hydrochloride which totals 35 grammes, should be 8 years and 6 months’ imprisonment based on the authorities as it stands. That is a starting point from which a deduction is thereafter made, of course, for the discount for plea of guilty.

I correct myself and properly corrected by Mr Bullett, that given the date of the defendant’s arrest and the date of her transfer to this court - the matter was transferred to this court on 20 May 2016 and was set down for trial on 22 June 2016 - by reason of which, she is not caught by the new sentencing guidelines insofar as discounts are concerned.

Returning then to the appropriate starting point. For a total quantity of 35 grammes, a starting point, after trial, of 8 years and 6 months’ imprisonment is appropriate. From that, the defendant is entitled to a further one-third discount on the basis of the then existing Court of Appeal guidelines. That will then bring the sentence, before any allowance for personal consumption, back to one of 6 years and 8 months.

I have just indicated that the 6 years and 8 months would be a sentence properly imposed before any discount for self-consumption. Given that this is not a significant proportion, none of the percentages which are adverted to in the authorities to which I have referred apply. That is the sentencing parameters of 10 per cent through to 25 per cent, all of which are only effective where there is a significant proportion of the dangerous drugs for self-consumption.

As I have indicated, that is adopting the approach of totality, taking into account the full 35 grammes. Individual sentences, however, must be imposed in respect of the quantity of drugs for each count. For example, in Count 1, given the quantity of drugs, a starting point after trial for that quantity would be 7 years and 4 months’ imprisonment. Similarly, for Count 2, a starting point after trial will be 7 years and 10 months’ imprisonment. My calculation is that applying a full one-third discount in respect of each of those would result in sentences of 4 years and 10 months on Count 1 and 5 years and 8 months on Count 2.

So returning then to the overall sentencing, in the circumstances, I have considered some allowance can properly made for self-consumption on the part of this defendant. In my opinion, that allowance, in all of the circumstances and with some degree of generosity, would be one of 6 months. That would result in an overall term of imprisonment of 5 years and 2 months’ imprisonment.

To achieve that result, I would impose a sentence of 4 years and 10 months’ imprisonment on Count 1 and 5 years and 2 months’ imprisonment on Count 2, those sentences to be served concurrently.

Unless there are any issues as to calculations, that seems to me, in the circumstances, to be, bearing in mind the allowance for self-consumption, the appropriate sentence to impose. So for the avoidance of any doubt, the total sentence imposed will one of 5 years and 2 months’ imprisonment.