HKSAR v. Wong v. Ve

HCCC 310/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 310 OF 2017

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

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COURT:

The defendant, Wong Ve-ve, pleaded guilty before me to one count of possession of a dangerous drug, Charge 1, and one of trafficking in a dangerous drug, Charge 2. Charge 1 took place on the 17th day of October 2016. It concerned 14.82 grammes of methamphetamine hydrochloride. Charge 2 took place on the 16th day of December 2016 and it concerned 118 grammes of methamphetamine hydrochloride.

At 3 am, on 17 October 2016, a police officer on patrol at Apliu Street, Sham Shui Po, saw the defendant acting furtively thereat. He intercepted the defendant for an inquiry. A search of the defendant’s handbag found a metal box containing two re-sealable plastic bags of suspected ‘Ice’. The officer arrested and cautioned the defendant.

The defendant said, under caution, the ‘Ice’ belonged to her and she bought it in one go to make it convenient for her consumption. At the time, the defendant had cash $10,095 on her. A search of the defendant’s residence at Ferry Street found nothing illegal or suspicious. The two bags of suspected ‘Ice’ were later found to be a total of 15.04 grammes of a crystalline solid containing 14.82 grammes of methamphetamine hydrochloride.

At the material time, the ‘Ice’ had an estimated retail value of $5,174.

The defendant exercised her right of silence in the subsequent video-recorded interview. She was charged with trafficking in a dangerous drug and her case was brought up at the Kowloon City Magistracy for mention on 18 October 2016. The magistrate admitted the defendant to bail until 28 December 2016.

On 16 December 2016, acting on information, police mounted an anti-narcotic operation at Tai Yue Mansion, at No. 133 Sai Yi Street, Mong Kok. At 5.28 pm on the same day, after a female exited the premises at 4th Floor, Tai Yue Mansion, the officers entered the premises and executed a search warrant. At 6.05 pm on the same day, the defendant opened the door of the premises with a key. At the time, she was holding a black coat in her right hand. She claimed she was living at the premises.

The police found inside a pocket of the coat, an electronic scale and a transparent plastic bag of suspected ‘Ice’ which was later found to be 123 grammes of a crystalline solid containing 118 grammes of methamphetamine hydrochloride with an estimated retail value of $41,082.

Arrested and cautioned, the defendant claimed the bag of ‘Ice’ was for her own consumption. Two mobile phones and cash $1,500 were found in her possession. In the subsequent video‑recorded interview, the defendant claimed the packet of ‘Ice’ was for her own consumption. On average, she consumed 1 to 2 grammes of ‘Ice’, cost around $400 a day. She bought the drugs from a friend at $10,000 on the date of her arrest. She was living at one of the rooms in the premises. The $1,500 cash was her own savings. At the time, she worked as a part-time saleslady earning around $10,000 a month. When shown the electronic scale seized, she claimed she used it to verify the weight of the things she bought with this scale.

The defendant now admits and accepts that she was unlawfully trafficking in the ‘Ice’ seized from her on 16 December 2016.

The defendant has one previous conviction. In 2013, she was convicted of possession of dangerous drugs and was sentenced to be detained at the drug addiction treatment centre.

The defendant was born in Hong Kong and she is now 44 years old. She finished up her secondary education in Hong Kong and she worked as a part-time saleslady at the time of her arrest. She is single and she lives in Mong Kok, Kowloon.

Mr Yuen, in mitigation, submits that the strongest mitigating factor in this case is the guilty plea of the defendant which she tendered at the first available opportunity. The defendant has shown substantial remorse through her plea of guilty and during her time in custody. Mr Yuen submits that the defendant understands the seriousness and the gravity of the offences and she has been advised of the sentencing tariff.

Mr Yuen tells me the defendant is a single child with no siblings. She has a 21-year-old son which she raised singlehandedly. The defendant also cares for her elderly mother who is now 78 years old. The mother of the defendant has been suffering from bone cancer for a number of years and she also has kidney and liver problems. Mr Yuen tells me that the defendant started to take ‘Ice’ in 2008 when she was working as a part-time saleslady.

The defendant admitted to the police she was a drug-abuser at the time of her arrest. In fact, the defendant was convicted of the offence of possession of a dangerous drug back in year 2013 and she also pleaded to Charge 1, ie, possession of a dangerous drug.

Mr Yuen submitted a urine test report of the defendant dated 3 January 2017. The report shows that the urine specimen collected from the defendant the day after her admission on 19 December 2016 yielded a positive result to amphetamine. Mr Yuen submits that the report shows that there was ‘Ice’ in the defendant’s body when she was subjected to the urine test and the urine test report also shows that the defendant was a drug-abuser at the time of her arrest. Mr Yuen urges me to accept part of the drugs seized was for the defendant’s own consumption.

Mr Yuen submits two handwritten letters written by the defendant and her mother respectively and also a letter by Pastor Madam Poon of Christian Prison Pastoral Association Limited and a letter written by the defendant’s employer. In addition, Mr Yuen submits the certificate of completion issued by the School of Continuing and Professional Studies of the Chinese University of Hong Kong, which shows that the defendant has a keen interest in pursuing self-study while in custody. Mr Yuen tells me that the defendant is determined to turn a new leaf upon release from prison.

Mr Yuen reckons that there was a latent risk present in Charge 1, and for Charge 2 Mr Yuen also reckons that the defendant committed the offence whilst she was on bail for Charge 1. In conclusion, Mr Yuen submits that the defendant pleaded guilty at the first available opportunity and both offences involved ‘Ice’. He asked me to consider passing partly-consecutive if not wholly-consecutive sentences on the defendant.

In sentencing the defendant, I have borne in mind the nature and the quantities of the drugs involved in Charge 1 and 2, the facts of the case, the background information of the defendant and all the matters urged on the defendant’s behalf by Mr Yuen.

Charge 1 concerned 14.82 grammes of methamphetamine hydrochloride. I have considered the case HKSAR v Mok Cho Tik [2001] 1 HKC 261. In Mok Cho Tik the Court of Appeal said the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. In the present case, in my judgment, an initial starting point of 16 months is appropriate.

I find that there was a latent risk that part of the drugs might fall into the hands of others. Given the quantity of the drugs, ie, 14.82 grammes of ‘Ice’ and the means of the defendant, a latent risk is obviously present. Given the latent risk that I find to be present, I enhance the sentence by 5 months. The defendant is entitled to one-third reduction for her guilty plea. That will bring her sentence down from 21 months to 14 months. For the reasons given on Charge 1, I sentence the defendant to 14 months’ imprisonment.

Charge 2 concerned 118 grammes of ‘Ice’. Applying the tariff as set down by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the quantity of the ‘Ice’ involved in this case brings this case into the band between 70 to 300 grammes of ‘Ice’ and the range of sentence that applies is one between 11 and 15 years’ imprisonment. In my judgment, an initial starting point of 12 years’ imprisonment is appropriate.

As said, the defendant committed Charge 2 while she was on bail for Charge 1 and I take it as an aggravating factor. In my judgment, an enhancement of 3 months is justified and that would bring the starting point up to 147 months’ imprisonment.

The defendant pleaded guilty at the first available opportunity. She is entitled to the full one-third reduction for her guilty plea. That would bring her sentence down to 98 months’ imprisonment. I am prepared to accept that part of the drugs seized on 16 December 2016 was intended for the defendant’s consumption.

Taking into consideration the fact that the defendant had one previous conviction for possession of dangerous drugs, she committed an offence of possession of dangerous drugs two months ago on 17 October 2016 and the urine test result showed a positive result to amphetamine. I am prepared to give the defendant an additional reduction of 8 months on account of the fact that part of the drug seized was intended for the defendant’s own consumption. That would bring the sentence down to 90 months’ imprisonment, ie, 8½ years.

Charge 1 and Charge 2 were distinct and separate offences. The defendant committed Charge 2 two months after Charge 1 and she committed the two offences at different locations. She committed Charge 1 at Apliu Street, Sham Shui Po. As for Charge 2, she committed the offence at a residential building in Mong Kok. In my judgment, the sentence of Charge 1 should run wholly consecutive to the sentence for Charge 2. The total sentence that the defendant has to serve is one of 9 years and 10 months’ imprisonment.

Clarification for sentence

COURT:

The computation of the sentences up to 90 months is correct but 90 months should be 7½ years, not 8½ years. So with the consecutive terms, the sentence should be 8 years and 10 months for 1 and 2. Charge 1 is 14 months. The total is 104. It should be 8 years and 8 months. The sentence for Charge 2 is 90 months’ imprisonment, ie, 7½ years and the total sentence that the defendant is to serve is 8 years and 8 months, ie, 104 months.