HKSAR v. Wagiyem

DCCC 866/2017

[2018] HKDC 356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 866 OF 2017

--------------------------------

--------------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.Defendant Ms Wagiyem pleaded guilty before me to 3 charges, namely Charge 1 - Trafficking in a dangerous drug, ie 4.33 grammes of a crystalline solid containing 4.30 grammes of methamphetamine hydrochloride (ICE); Charge 2 - Possession of a dangerous drug, ie 0.42 gramme of a cannabis in herbal form; and Charge 3 - Possession of apparatuses fit and intended for the inhalation of a dangerous drug, ie one inhaling device and one glass bottle with one tube, fit and intended for the inhalation of a dangerous drug, namely methamphetamine.

Admitted facts

2.The facts admitted by Ms Wagiyem may be summarized as follows.

3.On 16 July 2017 (a Sunday), in the evening, while Ms Wagiyem and a male person were going to open the door of 1/F of the subject building (“L1”), they were intercepted and the keys were seized from Ms Wagiyem.

4.Police entered L1 and executed a search warrant.  Then in the presence of Ms Wagiyem, police using the said keys opened the padlock which was used to secure the door of Room 8 of L1.  Room 8 was Ms Wagiyem’s residence at the time.

5.Found hidden underneath the top shelf of a blue metal shelving unit in Room 8 were found:-

(a) One plastic bag containing 4 plastic bags containing a total of 2.18 grammes of a crystalline solid containing 2.17 grammes of ICE (E1);

(b) One plastic bag containing 4 plastic bags containing a total of 2.15 grammes of a crystalline solid containing 2.13 grammes of ICE (E2); and

(c) One plastic bag containing one hand-rolled cigarette containing 0.42 grammes of cannabis, in herbal form (E3).

6.The following items were found on the second level of the same shelving unit:-

(a) One inhaling device comprising one plastic bottle with 2 openings (containing about 120 ml of a liquid which upon drying was found to contain 0.02 gramme of a solid containing methamphetamine) (E4); one of the openings was connected to a plastic straw with a metal-foil wrapping at one end; the other opening was connected to a plastic straw and further connected to a plastic straw;

(b) One transparent glass bottle with a tube (E5);

(c) One leather bag containing:-

(i) One electronic scale;

(ii) 69 transparent re-sealable plastic bags; and

(iii) Two lighters;

(d) One box of aluminium foil; and

(e) One gas cylinder.

7.Ms Wagiyem was arrested on the same day.

8.Back at the station, under caution Ms Wagiyem stated that:-

(a) She knew E1 and E2 were ICE and they belonged to her;

(b) She paid $1,900 to an unknown female on Thursday and took delivery of the dangerous drugs on Saturday;

(c) E3 which belonged to her was for smoking like a cigarette;

(d) She knew E3 was cannabis;

(e) She bought E3 together with E1 & E2 from the said unknown female;

(f) E4 belonged to her and it was used to inhale ICE, E1 & E2;

(g) E5 belonged to her and it was used to inhale ICE;

(h) The electronic scale belonged to her and it was used to weigh the dangerous drugs;

(i) The plastic bags belonged to her and they were used to divide the ICE;

(j) She was the only person with the keys to open the padlock;

(k) She rented Room 8 for about $3,300 per month;

(l) She had no source of income other than the money provided by International Social Service;

(m) She had a habit of consuming ICE about once a week; and

(n) She consumed ICE in Room 8.

9.The street value of E1 & E2 was estimated to be about $1,485; and the street value of E3 was estimated to be about $100.

10.Ms Wagiyem admits in Court that she possessed E1 & E2 for the purpose of trafficking.

Criminal record

11.The agreed criminal record shows Ms Wagiyem having a single conviction in 2014 for breach of condition of stay.

Antecedents

12.The agreed antecedents statement shows that Ms Wagiyem is aged 39 and was so at the time of the offences.  She is a Form 8 Recognizance holder (issued in June 2014) originally from Indonesia.  She completed F4 back home. She was unemployed.  She claimed she was a drug abuser.  She is married but lived alone in the subject premises.

Mitigation

13.Mr Cheung Yiu Leung of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Wagiyem.

14.The following is a summary of the mitigation submissions.

15.Ms Wagiyem married in Indonesia and has a daughter (aged 18) living with grandparents.

16.Ms Wagiyem came to Hong Kong in 2000 and worked as a domestic assistant until 2012 when her employment was terminated.  She made attempt to find other employment without success.

17.In 2004, she returned to Indonesia briefly to divorce her husband who had a violent disposition.

18.Since 2012, she lived on assistance from fellow country-folks also working in Hong Kong.

19.Since her non-refoulement claim, she been received assistance from International Social Service in the form of rent ($1,800 a month), travel allowance of a few hundred dollars and food coupons.

20.During those years living in Hong Kong, she picked up the drug habit leading to the three charges.  She is a drug abuser of ICE and cannabis.

21.According to the tariffs, this amount of ICE belongs to the 3 to 7 years’ brackets.

22.The fact Ms Wagiyam is an asylum seeker might be said to be an aggravating factor and it’s up the sentencing court to exercise its discretion as to how it will affect the sentence.  Mr Cheung prayed in aid the case of HKSAR v Shah Syed Arif [2016] 4 HKLRD 664.  Mr Cheung suggests that an extra 5 to 6 months might serve justice on account of this factor.

23.For possession of cannabis, Mr Cheung submitted that Ms Wagiyem is not in a position to pay a fine and urges the court to impose a short imprisonment sentence.

24.For the possession of apparatuses charge, Mr Cheung again urges the court to impose a short term imprisonment.

25.Mr Cheung asks for concurrent sentences in respect of all three charges as they are part and parcel of the same transaction.

26.Upon enquiry from me, Mr Cheung said that he had received no instructions to mitigate on the basis of self-consumption of ICE; he also could find no basis on which to submit that a substantial proportion of the ICE seized was for self-use.  Mr Cheung however did say that in all the circumstances including the presence of the ICE bottles, there was a real likelihood that some of the ICE was for self-consumption.  Finally, Mr Cheung declined to call her lay client to give evidence on the matter.

Sentence

27.I have considered the mitigation submissions made by Mr Cheung Yiu Leung.

28.Apart from the early plea of guilty which earns her a 1/3 discount off the starting point, I can find no other mitigating factors in the case of Ms Wagiyem which would warrant further discounts.  In this respect, although I do accept that some small proportion of the ICE seized might have been there for the purpose of self-use, I agree with Mr Cheung that there is no concrete basis upon which to suggest that it was of any significant proportion.  Bearing in mind that possession of a dangerous drug itself carries a term of imprisonment, I am of the view that no reduction in sentence should be afforded to Ms Wagiyem in this instance (see HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69).

29.Trafficking in a dangerous drug is a serious offence.

30.According to the tariffs set down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in an amount of ICE of up to 10 grammes, the tariff sentence is 3 to 7 years.  For Ms Wagiyem’s possession of 4.30 grammes of ICE for purpose of trafficking, I will adopt an initial starting point of 4½ years’ imprisonment.  For her status as a Form 8 holder, I will enhance the starting point by 3 months.

31.For Ms Wagiyem’s simple possession of 0.42 gramme of herbal cannabis, I was originally minded to impose a fine of $2,000 (see HKSAR v Castano Arango Jose Reinel, CACC 174/2014).  However, because of her inability to pay a fine, I will pass a short term of imprisonment sentence on her.

32.Lastly, for the possession of the two ICE bottles, I will sentence her to 3 months’ imprisonment on a plea of guilty (see HKSAR v Law Sing [1996] 4 HKC 477).

33.All three charges were committed at the same time and in the same place, I am satisfied that concurrent sentences of imprisonment on those charges would be appropriate.

34.Ms Wagiyem, please stand.

35.In conclusion, then, the sentences are as follows.

36.For Charge 1, I sentence Ms Wagiyem to 38 months’ imprisonment.

37.For Charge 2, I sentence her to a term of 7 days’ imprisonment.

38.For Charge 3, I sentence her to a term of 3 months’ imprisonment.

39.I order that all of the sentences be served concurrently with one another.