HKSAR v. Cheung Kwok Yin, Ginny
Read the full judgment text of DCCC 64/2017 on BabelCite. This District Court judgment.
1. The defendant pleaded guilty to one count of trafficking in a dangerous drug; one count of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug [1] ; and one count of failing to surrender to custody without reasonable cause [2] .
Cited by 2 cases · Cites 5 cases
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DCCC 64/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 64 OF 2017 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one count of trafficking in a dangerous drug; one count of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug[1]; and one count of failing to surrender to custody without reasonable cause[2]. Summary of facts 2.The defendant was intercepted by Police officers while she was walking along Kansu Street at around 3:12am on 6th October 2016. A search was conducted upon her. 3.2 transparent re-sealable plastic bags were found in a coin bag inside the handbag that the defendant was carrying. 4.The smaller one contained 5 smaller bags inside, containing 1.4g of a solid, which was later examined and found to contain 0.14g of methamphetamine hydrochloride (colloquially known as ‘Ice’) (charge 1). 5.The bigger one contained 14.3g of a solid containing a chemical usually used as a diluting agent of Ice, but is not, in itself, a substance controlled under the Dangerous Drugs Ordinance (charge 2). 6.Under caution, the defendant confessed that she was helping someone deliver the 2 bags of Ice to Lower Ngau Tau Kok Estate for a reward of $200, which she had yet to receive. 7.The defendant was arrested for the offence of Trafficking in dangerous drugs. She was charged, brought before a magistrate, and was admitted to bail. She was to appear in court for the mention hearing on 23rd May 2017 but she did not. The defendant surrendered herself 3 days later (charge 3). 8.The defendant said under caution that she was expecting to be imprisoned for another case she was involved in and she did not want that to happen. She had stayed at her friend’s place and did not go home. 9.It is the prosecution’s case that the defendant was acting as a courier for the substances in both the smaller and the bigger bag. Counsel for the defendant confirmed that this is the basis of her guilty pleas. Previous convictions 10.The defendant was of clear record when she committed the present offences. She was, however, sentenced to DATC on 9th August 2017, at West Kowloon magistracy, for one charge of possession of dangerous drugs. This is not to be regarded as an aggravating factor. Mitigation 11.2 psychiatric reports were prepared on the defendant and both Dr Wong and Dr Lau confirmed that the defendant is fit to plea. 12.A background report was ordered to be prepared prior to sentencing, providing the court with the following information. 13.The defendant is 31 years old. She was educated up to secondary 3 level. She then took a course on waitress training. She worked as a waitress from 18 to 21 years old. The defendant had not been working for the past 10 years and was unemployed at the time of the incident. 14.According to the reports, the defendant began using drugs when she was 18. She had twice been admitted into psychiatric facilities for emotional instability. 15.The defendant left home when she turned 18. She returned home in February 2010 pregnant. A baby girl was born 2 months later. 16.An assessment was conducted in 2011 and it was found that the defendant is of borderline intelligence. She was found to be suffering from mental and behavioural disorders due to drug use. 17.Given the condition of the defendant, the baby girl was eventually made a ward of the Director of Social Welfare by the court pending adoption. 18.The defendant’s family found it increasingly difficult to live together with her and to have to deal with her drug related problems. Arrangements were made for the defendant to reside at a private residential care home in December 2011. The defendant, however, would go missing from time to time and her drug abuse and emotional problems continued. 19.The defendant left and lived alone in a rented room for a while. Her parents divorced two years ago. The defendant is now living with her father, who suffers from depression and requires daily medication. He is relying on his savings for the time being but may have to re-apply for CSSA in the near future. 20.According to the background report, the probation officer finds that the defendant did not think she had done anything wrong. The defendant claims that she trafficked in the drugs for money because her father only gave her $100 a week. This is disputed by her father who said it was $100 every 3 days and the reason he did not give her more was because the defendant was not good in handling money and he was worried that the defendant might spend the money on drugs. 21.The parents are heartbroken. They feel that the defendant had been exploited by bad people. They care about the defendant deeply, but they have no idea how to help her. Despite them being divorced, Probation Officer Lau is of the view that the parents have remained good friends and they share the common goal of trying to help the defendant. Sentencing guidelines and authorities 22.In relation to trafficking in ‘Ice’, according to the guidelines set down in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125, for up to 10 grammes of narcotics, the range of imprisonment is 3 to 7 years. 23.As for charge 2, doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, counsel for the defendant refers to the case of HKSAR v Li Oi Yee, CACC 362 of 2010 and suggests that the sentencing principles there should apply to this offence. 24.There the Court had adopted the approach of first treating the substance as what the appellant believed it to be and apply the relevant guideline sentence, and then make an appropriate reduction. There the reduction was around 50%. Maximum Sentences 25.The maximum sentence for the offences in charge 1 and 2 is the same, which is a fine of $5 million and life imprisonment. 26.The maximum sentence for charge 3 on conviction upon indictment is that of a fine of any amount and imprisonment for 12 months. Sentence Charge 1 27.An arithmetical application of the guideline sentence would lead to an initial starting point of a sentence slightly more than 3 years. 28.Given the quantity of drugs and the circumstances of the case, I find that an appropriate starting point is that of 3 years’ imprisonment. 29.Although I find that the unusual personal circumstances of the defendant a mitigating factor, I am mindful of the following words of the Court of Appeal in the case of R v Lau Tak Ming:
30.In the recent case of HKSAR v Chin Li Ying, CACC 12/2017, the Court of Appeal repeated the above injunction and reminded judges as follows:
31.Bearing in mind the above, I find that for the unusual personal circumstances of the defendant in our present case, I will reduce the initial starting point by 3 months. 32.The defendant had entered a timely plea and is granted the full one-third discount. The sentence after discount for charge 1 is, therefore, 22 months’ imprisonment. Charge 2 33.In the above mentioned case of Li Oi Yee, the appellant was convicted after trial of attempting to traffic in a dangerous drug. She was stopped by Police officers outside her flat and 3 resealable bags containing a total of 39.5g of a substance was found on her. 34.The appellant believed the substance to be ‘Ice’ but upon analysis, it turned out to not be a drug at all. 35.The appellant said she bought the substance for $13,600 believing it to be ‘Ice’ and intended it for her own consumption. 36.Had the substance in fact been ‘ice’, the appropriate sentence would be in the region of 8 to 8.5 years’ imprisonment. The learned trial judge imposed a sentence of 4 years’ imprisonment. 37.On appeal, the Court of Appeal said this:
38.Based on that approach, the Court found that the sentence imposed was not excessive. In fact, the Court was of the opinion that there could have been no justifiable complaint had the sentence been one of 5 years’ imprisonment. 39.At the end of their judgment, the Court opined that the conduct of the appellant was an act preparatory to trafficking in a substance believed by her to be a dangerous drug and referred to the case of R v Ye Wing-leung [1997] 3 HKC 560, CAAR 2/1997. 40.There the applicant was convicted after trial of an offence under s.4(1)(c). The defendant was found to be in possession of 937.7 grammes of a mixture containing caffeine, antipyrine, paracetamol, theophylline and chlorpheniramine and 123.5 grammes of a mixture containing antipyrine, theophylline and carbetapentane. None of those substances are dangerous drugs under the Dangerous Drugs Ordinance. A government chemist gave evidence at trial saying that the substances could be used with heroin as adulterants. 41.The applicant, when questioned about the bags, referred to them as “white powder” (the colloquial term for heroin) and that he was to deliver the substance to others. 42.The Court considered the application of s.4(1)(c) and found that the true definition of ‘trafficking’ in the section covers the storing of dangerous drugs or substances believed to be dangerous drugs. They also found that storing the substances is an act preparatory to positive acts of trafficking such as exporting or supplying dangerous drugs. They were satisfied that the Applicant’s conduct of storing what he believed to be heroin in preparation for delivery to others can properly be regarded as constituting an act preparatory to trafficking and that it is covered by s.4(1)(c). 43.Having confirmed that the applicant was rightly convicted, the Court turned to consider the Attorney General’s application for review of sentence. 44.The trial judge took into account the Respondent’s clear record, his age (not stated in judgment) and the fact that he was recently married and had a newly born child and sentenced him to 18 months’ probation. 45.The Court pointed out that the Respondent had 1,060g of a mixture which he believed to be dangerous drugs, which no doubt would have been used to adulterate heroin. A sentence of imprisonment was called for. They considered that imprisonment of 4 years would have been appropriate, but given that it was an application for review and that they were substituting a custodial sentence for a non-custodial one, the sentence was to be one of 3.5 years’ imprisonment. 46.Neither the case of Li Oi Yee nor Ye Wing-leung proposed to lay down guidelines for sentencing offences where the offender trafficked in a substance they believed to be dangerous drugs but were not. 47.They do however confirm that an immediate custodial sentence is appropriate. 48.The approach adopted by the Court in the case of Li Oi Yee was not the same approach the Court, differently constituted, adopted in the earlier case of Ye Wing-leung. Had the same been applied, 1,060g of heroin would have attracted a starting point of 22 years. Even after a 50% reduction, the sentence would have been 11 years, which was nowhere near the 4 years’ imprisonment that the Court considered would have been appropriate. 49.In our present case, both the prosecution and the defence accept that the quantity of isopropylbenzylamine is the whole of the 14.3g as stated in the summary of facts. 50.Mr Kwan for the prosecution helpfully pointed out that there had been no previous court case of isopropylbenzylamine being used as an adulterant for Ice, and suggested that this may be the start of a new trend. He also remarked that the Ice found in Hong Kong are usually of high purity. There is, nevertheless, no evidence as to how much final product would the adulterants be able to produce. 51.With the above in mind, my approach to sentence is as follows. 52.If all 14.3g of the substance were what the defendant believed it to be, that is to say, ‘Ice’, the guideline sentence would be 87 months’ imprisonment. 53.Adopting the approach of the Court of Appeal in Li Oi Yee, I find that a 50% reduction in the sentence would be sufficient to reflect the defendant’s moral culpability, leading to a sentence of 43.5 months’ imprisonment. 54.In addition to the 50% reduction, I will further reduce the sentence for the mitigating factor of the defendant’s unusual personal circumstances by 3 months, leading to a sentence of 40.5 months’ imprisonment. 55.The defendant is then granted the full one-third discount for her timely plea of guilty, resulting in a sentence of 27 months’ imprisonment on charge 2. Charge 3 56.As for charge 3, I accept that the defendant committed the offence because she was scared, and I take into consideration that she surrendered herself 3 days later. I find that a short custodial sentence is appropriate. 57.I will adopt a starting point of 1.5 months’ imprisonment, which is discounted to 1 month’s imprisonment upon the defendant’s guilty plea. Totality 58.This is not a case where the court can combine the quantity of substances in the two charges in order to decide on the sentence, because the reduction applicable to the substance in charge 2 would not be applicable to the Ice in charge 1. 59.Although the defendant has been having a difficult life, she has the support of her family. It is up to her to make good use of their support and to try to make something out of her life. Despite her condition, she must still bear the full consequences of her action. 60.Taking a step back, bearing in mind all the circumstances, I find that 8 months of the sentence in charge 2 should be served consecutively to the sentence in charge 1, the balance concurrently. 61.Although charge 3 was committed out of the defendant’s fear of incarceration, she knew clearly that she was required to attend court and chose to stay away. It was a flagrant disregard of an order of the court. I will order the sentence in charge 3 to be served consecutively to the rest of the sentence. 62.The final sentence for all 3 charges is, therefore, 31 months’ imprisonment. I have carefully considered whether this sentence would have a crushing effect on the defendant and am of the view that it should not. 63.Although it is a long sentence, given what has been happening to the defendant and how her family had been unable to help her, this coming period of incarceration may turn out to be a blessing in disguise. I sincerely hope that the defendant may be able to turn a new leaf after serving her sentence. 64.The DATC order imposed on 9th August 2017 is hereby discharged.
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