HKSAR v. Leung Bik Wai Betty

DCCC 947/2017
DCCC 976/2017
(Heard together)

[2018] HKDC 579

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 947 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 976 OF 2017

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REASONS FOR SENTENCE

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BACKGROUND

1.There are two cases before me and hereinafter referred to as 1^st case (DCCC 947/2017) and 2^nd case (DCCC 976/2017).  The same defendant (“D”) has pleaded guilty to all charges in both cases[1].

ADMITTED FACTS

The 1^st case

2.In 2015, police mounted on a decoy operation in Yuen Long/Tuen Mun area.  They sent in police officers (PW1-3) as decoys.  On three occasions, D sold “ice” to them.

(1) Charge 1 – Trafficking in a dangerous drug

3.On 27 May 2015 at around 2325 hours, PW3 met D at the lift lobby at 6/F, Hing Cheung House, Tai Hing Estate, Tuen Mun and had a chat with her.  In the course, D offered PW3 “something cold”.  She then gave PW3 a plastic bag which contained 0.68 gm of crystalline solid containing 0.67 gm of methamphetamine hydrochloride.  PW3 in turn paid her HK$300.  D asked PW3 to introduce more customers to her.

(2) Charge 2 - Trafficking in a dangerous drug

4.On 3 June 2015 at around 1900 hours, PW1 and PW3 met D at the staircase at 6/F, Hing Cheung House, Tai Hing Estate, Tuen Mun and had a chat with her.  In the course, D said she got some new “Chu Yuk” and asked if PW 1 wanted it for HK$600.  PW 1 said yes and so D gave him a plastic bag which contained 1.09 gm of crystalline solid containing 1.07 gm of methamphetamine hydrochloride.  PW1 in turn paid her HK$600.

(3) Charge 3 - Trafficking in a dangerous drug

5.On 5 June 2015 at around 1740 hours, PW1 and PW2 met D at the lift lobby at 11/F, Hing Cheung House, Tai Hing Estate, Tuen Mun and had a chat with her.  In the course, after sending away PW2 to check whether there were people nearby, D asked PW1 about the “goods” from the last occasion and offered to sell him more for HK$600.  She then gave PW1 a plastic bag which contained 1.42 gm of crystalline solid containing 1.40 gm of methamphetamine hydrochloride.  PW1 in turn paid her HKS600.

6.Upon D’s subsequent arrest in August 2015, PW1 and PW3 positively identified D in ID parades.

7.On 27 May 2015, D sold ice to PW3 (Charge 1).  On both 3 & 5 June 2015, D sold ice to PW1 (Charges 2-3).

The 2^nd case

8.At around 1015 hrs on 17 September 2017, Yu Xiaoying (PW1) was leaving Sha Tsui Road after buying groceries.  She placed her purple and blue coloured wallet (“the Wallet”)(valued at HK$150) into her black rucksack, zipped it shut and carried the rucksack at her back.

9.At around 1025 hours on the same day, PW1 was outside Concord Square, No 88 Chuen Lung Street, Tsuen Wan, New Territories.  At this point, Li Pok Chuen (PW2) was also outside Concord Square and he witnessed that a woman (later known as D) had used her right hand to unzip PW1’s black rucksack and took out the Wallet.  As WSGTA 3238 (PW3) was nearby, PW2 immediately reported the incident to her.

10.PW2 and PW3 then tried to stop D but D fled.  After a short chase, PW2, PW3 and D reached the junction of Sha Tsui Road and Chuen Lung Street.  D then threw the Wallet into a cardboard box nearby.  Subsequently, PW2 and PW3 together with PC24252 (PW4) and PC59015 subdued D.  D was handcuffed.

11.At 1035 hours on the same day, PW4 arrested D for pick-pocketing.

12.Upon further investigation, the following items belonging to PW1 were found in the Wallet:-

(a) $2,800 HKD in cash;

(b) ¥98 RMB in cash;

(c) two bank cards;

(d) one China Identity Card; and

(e) one medical card.

13.All items were recovered, PW1 suffered from no loss in this case.

D’S CRIMINAL RECORDS AND MITIGATION

14.D has 24 previous convictions, none is similar to trafficking in dangerous drugs in the 1^st case but there are 4 drug related convictions, ie possession of dangerous drugs.  In so far as the 2^nd case is concerned, D has 9 similar convictions, they are all pickpocketing.  The last conviction, which was also pickpocketing, was recorded in 2015 where D was sentenced to 18 months’ imprisonment.  She was released on 20 September 2017. 

15.In mitigation, Mr Kelly, as articulate as usual, accepted some aggravating factors and submitted salient points of mitigation as follows.  In respect of the 2^nd case, Mr Kelly accepted that D is a recidivist. 

16.Mr Kelly also accepted that D was not entitled to 1/3 discount for the 1^st case as she changed her plea from not guilty to guilty after the trial dates were fixed. 

17.In respect of mitigation, regarding D’s personal background, D is now 44 years old, unmarried with a daughter now 21 years old.  She relied on social security ie CSSA before remand.  I was told that she is in an unenviable condition.  After she gave birth to her daughter in 2000 at the age of 27, she was abandoned by the daughter’s father.  She had to take care of her daughter alone.  Almost at the same time, she faced the loss of her beloved mother.  She first transgressed the law in 2000.  Worse still, she wrongfully started the bad habits of taking drugs as painful life relief. 

18.Secondly, she pleaded guilty to all charges.  Thirdly, in the decoy operation of the 1^st case, the police did not arrest her for the 1^st and 2^nd offences in the 1^st case until the 3^rd offence was committed and 2 out of 3 offence involved the same decoy police officer.  Further, there was delay in prosecution in that the offences in the 1^st case were committed in May and June 2015 while the charges were laid in September 2017.  There was a delay of more than two years (The prosecution replied that the same operation has resulted in the arrest of 35 persons, hence the preparation of evidence and consequential advice from the Department of Justice required reasonable and proportional time.  Two years were reasonable in the circumstances).  Moreover, in the 2^nd case, there was no confrontation and the victim did not suffer loss and the property were recovered.  Lastly, while D wished the court knew more about her depression history but did not wish to be remanded in Siu Lam Psychiatric Centre, I adjourned the sentence for background report. 

19.The background report verified much of D’s personal background.  In further mitigation, I have considered letters of mitigation from D, a pastor and the medical report of the Castle Peak Hospital.  D had been suffering from substance-induced psychosis with history of polysubstance misuse.  She still needs to continue her follow-ups and psychiatric treatment at the Tuen Mun Mental Health Centre.

SENTENCING CONSIDERATION AND DISCUSSION

20.Legally speaking, according to the case of HKSAR v Tam Yi Chun CACC 524/2011, the total weight of 3.14 gram “ice” in the 1^st case may attract 3 to 7 years of imprisonment.  To be more precise, by way of proportional and mathematical calculation, that may attract about 51 months’ imprisonment (“total weight approach”).  On the other hand, if I treat the 3 offences in the 1^st case as separate and distinct offence, D would face a total of 120 months’ imprisonment by reference to their weight but before considering the totality principle (38 months for charge 1; 40 months for charge 2; 42 months for charge 3).  There is no straightjacket in sentencing.  The objective is to achieve a fair and just result without anomaly by giving meaningful discount to those who pleaded guilty to multiple offences.  Bearing in mind the proximity in terms of time, place and same group of police officers in the 3 offences of the 1^st case, I adopt the respective starting points of 38 months, 40 months and 42 months.  1/4 discount should be given for her guilty plea: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. D should be sentenced respectively for 28 months, 30 months and 31.5 months.  I round them down as 28, 30 and 31 respectively.   

21.While I do not intend to add working pressure on the police after handling plenty of arrested persons, in my view, the main team responsible for the operation with 35 arrested persons should seek assistance from other teams to expedite the charging process.  In my view and without criticism on the police and the DoJ with budgeted resources, the delay could have been shortened had there been timely deployment of resources.  D should not be disadvantaged accordingly.  I exercise my discretion to make a slight reduction on sentence of 2 months from each offence in the 1^st case[2]. That ended up as 26, 28 and 29 respectively.  

22.I further take into account the totality principle in the 1^st case and to avoid anomaly, I order sentence on charges 2 and 3 be made concurrent, 13 months in the 1^st charge be made consecutive with charges 2 and 3.  The total sentence for all charges in the 1^st case is 42 months, which is akin to giving 1/4 discount for 51 months had I considered the total weight approach (38.25 months). 

23.Regarding the 2^nd case, the relevant cases are HKSAR v Ngo Van Huy [2005] 2 HKLRD 1; HKSAR v Chui Chiu Kwai CACC 452/2011; HKSAR v Cheng Wai Leung CACC 358/2016.  In Ngo case, first offender should receive 12 to 15 months’ imprisonment after trial for pickpocketing.  In Chui case, the court added 9 months for repeated offending and another 3 months for happening in crowded area.  In Cheng case, the court added 9 months for repeated offending and another 3 months for “joint enterprise”.

24.Having considered the mitigation and the facts of the 2nd case, I adopt a starting point of 15 months’ imprisonment, I add 9 months for repeated offending as aggravating factor.  I gave 1/3 discount for her guilty plea. That arrived at 16 months’ imprisonment. 

25.In a nutshell, D committed the 2^nd case while on bail in the 1^st case, I see no reason why further discount should be given and I see no reason why the sentence for 2^nd case should not be made consecutive to the 1^st case.  In short, the 16 months’ imprisonment for the 2^nd case is consecutive with 42 months for the 1^st case.  D is sentenced to 58 months’ imprisonment in total.