HKSAR v. Cheung Ka Ying

HCCC 59/2018

[2018] HKCFI 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 59 OF 2018

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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 a dangerous drug and was convicted to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, paying particular regard to the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on her behalf.

The facts which the defendant admitted may be summarised as follows.

When police officers were handling a report of someone shouting for help at a public housing flat, they broke open the metal gate, as the defendant and another man inside the flat refused to open the gate, and there was worry that someone in the flat might be in danger. Inside the flat, officers found a white plastic bag containing ‘Ice’, dozens of transparent resealable plastic bags, an electronic scale and other items. Under caution, the defendant said she had bought the ‘Ice’ for self-consumption.

I was told that the defendant is 27 years of age; she is divorced with a son 7 years old. At the time of arrest, she was living with her boyfriend. She has completed Form 2 education and had worked as a clerk and also in pubs, then she had been unemployed for several months until her arrest. She gave birth to a girl in October 2017 when she was in custody. The infant girl is staying with the defendant in a Correctional Services institution.

The defendant is not a first time offender. In 2007, for a charge of common assault, she was put on probation. She breached the probation order and was sentenced to DATC. In 2016, for possession of dangerous drugs, she was sentenced to 2 months’ imprisonment, suspended for 24 months. She therefore committed the present offence in breach of the suspended sentence. However, the court was told that the defendant had committed another case of possession of dangerous drug in breach of the suspended sentence and was sentenced by a magistrate to DATC.

In mitigation, learned counsel for the defence, Mr Chan, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that she is now full of remorse, especially as she now realises the suffering she has brought to her children and mother. Mr Chan also told the court that it was the intention of the defendant to retain about half of the drugs seized for her own consumption. It was said that she started to consume drugs after she had been raped years ago.

Letters of the defendant, her mother and her son were produced. In her letter, the defendant expressed remorse. Her mother said the defendant is of good nature and pleaded leniency on her behalf. The son’s letter shows the fact that the defendant had been arrested is being concealed from him. The son is being looked after by the defendant’s mother who does not enjoy good health.

The dangerous drug which the defendant had trafficked in was ‘Ice’. The total quantity was 28.13 grammes of crystallised solid containing 27.39 grammes of methamphetamine. The tariff as set out in HKSAR v Tam Yi Chun [2011] CACC 529 is applicable. In that case, the Court of Appeal held that if the narcotic content is between 10 to 70 grams, 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 seized, which is the most important factor in consideration of the sentence, a starting point slightly above 8 years would have been appropriate. The defendant claimed that some of the dangerous drugs seized was intended for her own consumption. In this connection I have regard to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121, and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872, as well as the following matters.

The drug was found at where the defendant was living; her first response when the drug was found; the defendant’s previous record and the urine test conducted upon the defendant’s arrest, it shows methamphetamine in her urine. I am also satisfied that having the asserted quantity of drug for her own consumption was not definitely beyond her means and such asserted quantity so substantial cannot be said with certainty as being beyond the reasonable range one would keep for self-consumption.

In all the circumstances, I am prepared to accept that a substantial quantity of the dangerous drug seized would be intended for own consumption by the defendant. However, at the same time, my assessment is that the latent risk was very high. Moreover, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed, having regard to the quantity asserted. In any case, even if the quantity for the purpose of trafficking was as low as half the quantity seized, a starting point of over 7 years would have been called for.

Having taken into account the above factors, and having regard to the case of HKSAR v Tam Ling Yuen [2015] CACC 159, and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung [2016] CACC 314, as well as the fact that this is the first conviction of the defendant for the offence of trafficking in dangerous drug, I adopt an ultimate starting point of 7 years and 3 months. The defendant pleaded guilty before a magistrate and for this the defendant is entitled to a one-third discount. Further, having regard to mitigation submission of learned defence counsel, bearing in mind in particular that the defendant had recently given birth to a girl, I’m prepared to give the defendant a further discount of 4 months. In all the circumstances, I am of the view that this is the extent of discount the defendant is entitled to.

The defendant committed the present offence when a suspended sentence was in force. In this connection, I have considered the provision in section 109C of the Criminal Procedure Ordinance, and what the court learned the magistrate had done in the other case I mentioned earlier. Parties are in consensus that the magistrate should be taken to have considered all the relevant factors before he sentenced the defendant to DATC. In all the circumstances, I am of the view that it will be just for me to make no order with respect to the suspended sentence.

For the reasons I have said, I sentence you to an imprisonment term of 4½ years.