HKSAR v. Shit Wai Ming, Rita

HCCC 342/2017

[2018] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 342 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 pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and one charge of possession of dangerous drugs and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, paying particular regard to the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on her behalf.

The facts which the defendant admitted may be summarised as follows. The defendant was stopped by police officers when she was opening the door of a domestic flat. She was together with two other persons. Upon search of her handbag, seven bags of ‘Ice’ and a bag containing 27.3 grammes of substance, which was not dangerous drug, were found inside a plastic bag sealed with adhesive tape. She was arrested. Under caution she said the dangerous drugs were for her own consumption.

The flat was later searched. Further ‘Ice’ contained in 11 resealable plastic bags, which is the subject matter of Charge 2, were found on a table in the sitting room. Numerous empty, resealable plastic bags of different sizes and cash of $52,300 were found in a locker. The defendant also admitted under caution that the further drugs found were for her own consumption.

In a subsequent interview, she maintained that the drugs were for her own consumption.

I was told that the defendant is 47 years of age. She has completed Form 1 education only and was unemployed at the time of the offence. She has only one previous conviction record. In 1984, for a charge of blackmail, a probation order was imposed on her. This conviction has no significance to the sentence in the present case.

The defendant is married and has a son and a daughter. In mitigation, learned counsel for the defence, Mr Surman, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is now remorseful. He said the defendant became addicted under bad influence of friends at a time when her children became less dependent on her as their age grows.

Despite she had committed an offence when she was very young, she had managed to turn over a new leaf but unfortunately because of her dependence on drugs she committed the present offences. Her family is in full support of her. They attended court today. They also wrote letter to plead for leniency. Her husband said the defendant is kind-hearted and a responsible wife. Her children said the defendant is a good and caring mother.

There are letters written by two priests. Both said that the defendant is under good influence of the religion. All are confident that the defendant will not commit further offence. The defendant herself wrote to express her remorse.

Mr Surman said the defendant intended to retain some of the drugs for her own consumption, despite she was not able to specify the quantity for this purpose. He informed the court that urine tests conducted when the defendant was in custody confirms that she had consumed ‘Ice’.

The total quantity of the drugs mentioned in Charge 1 was 50.09 grammes of a crystalline solid containing 24.37 grammes of methamphetamine or methamphetamine hydrochloride. Having regard to HKSAR v Chow Shuk Lan, CACC 447/2007, both types of dangerous drugs which the defendant had trafficked in were of the nature of ‘Ice’. The tariff as set out in HKSAR v Tam Yi Chun, CACC 524/2011, is therefore applicable. In that case, the Court of Appeal held that if narcotic content is between 10 to 70 grammes, the sentence to be considered is 7 to 11 years’ imprisonment. In all the circumstances, I see no reason to depart from the tariff.

By reference to the quantity of the dangerous drugs involved, which is the most important factor in consideration of the sentence, a starting point close to 8 years would have been appropriate. The defendant claimed that some of the dangerous drugs seized were intended for her own consumption. In this connection, I have a regard to HKSAR v Wong Suet-hau, [2002] 2 HKLRD 1121 and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872.

The defendant was stopped when she was seeking entry into the flat, which she had been occupying. What the defendant said upon arrest is consistent with the present assertion. She claimed also that she had just bought the drug. I note the positive result of the urine test upon her custody. Having regard to all the circumstances, I am prepared to accept that some dangerous drugs were intended for own consumption by the defendant. However, the quantity intended for this purpose would be small and in any case my assessment is that the latent risk was very high. In this connection I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed.

Moreover, even if the quantity for the purpose of trafficking was as low as half the quantity seized, which I do not consider would have been the case, a starting point of at least 7 years should have been considered. Having taken into account the above factors and having regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015 and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung, CACC 314/2016, I adopt an ultimate start point of 7½ years for Charge 1, the trafficking charge.

For Charge 2, the possession charge, for which the defendant admitted to be in possession of a total of 3.07 grammes of (which?) 2.96 grammes of ‘Ice’, having regard to HKSAR v Mok Cho Tik [2001] 1 HKC 261 and HKSAR v Jarhia Kuldeep Singh, CACC 96/2006 and my assessment of a substantial level of latent risk, I adopt a starting point of 21 months.

The defendant pleaded guilty and I accept her remorse. For this, the defendant is entitled to a one-third discount for both charges. In all the circumstances, having regard to the very able submission of learned defence counsel, I am of the view that this is the extent of discount the defendant is entitled to.

Defendant, please stand up. For the reasons I have said, I sentence you to 5 years’ imprisonment for Charge 1 and 14 months’ imprisonment for Charge 2. Having regard to totality, I order the two sentences to run concurrently. You, therefore, are to serve a total sentence of 5 years’ for the two charges.