HKSAR v. Kui Ping, Fanny

HCCC 99/2018

[2018] HKCFI 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 99 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 has pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 172.67 grammes of a mixture containing 132.03 grammes of heroin hydrochloride and 2.36 grammes of a crystalline solid containing 2.26 grammes of methamphetamine hydrochloride. She has been committed to this court for sentencing.

On the morning of 31 August 2017, the defendant was stopped at the Lo Wu Control Point by customs officers and upon a search of her person was discovered initially, protruding from her person, a condom containing suspected dangerous drugs.

Upon being cautioned, she admitted she had bought the drugs in mainland for her own consumption and during the time while she was in custody, she discharged three more pellets in the toilet of the Customs Arrival Hall.

And upon being cautioned, she again claimed that those contents were for her own consumption which she had bought in the mainland for about $100,000.

She was taken to the North District Hospital where, upon an X-ray, there was a foreign object seen inside the defendant’s body cavity and subsequently, the defendant discharged that pellet of suspected dangerous drugs.

Customs officers conducted a home search and there was nothing found; no drugs or paraphernalia for consumption were seized from her home.

The government chemist subsequently examined all the suspected dangerous drugs and found that they contained the quantity which is already enumerated in the charge.

The value of the methamphetamine hydrochloride seized was in the region of HK$965.24 and the value of heroin was in the region of HK$109,645.54. Therefore, the total value of the drugs was in the region of HK$110,610.69.

The defendant is aged 44 and has an unattractive record. She has had 11 previous convictions, eight of which were drug related. I am informed that according to the criminal record, there were two drug trafficking convictions in 2005. However, Mr Yu has asked the prosecution to look into whether the conviction for trafficking in the District Court was actually a conviction for possession, from information he received from the defendant, she was only convicted of possession rather than trafficking, for which she was given a 16 months’ sentence.

So I will give the benefit of the doubt to the defendant and only consider that she had only committed one count of trafficking in her past which was in the Kowloon City case in 2005 for which she was sentenced to 9 months’ imprisonment. And I am sure Ms Chit will look into this matter and if the criminal record is incorrect, she will cause the record to be amended.

However, as Mr Yu correctly pointed out, it is not of great significance for the purposes of sentencing today because the defendant, I can see from the previous convictions, the criminal record, that she had already been sent to drug addiction treatment centre for three times and she has not turned away from drugs. Her only mitigation in this matter is that she had pleaded guilty at the earliest opportunity and therefore is entitled to one-third reduction.

Now, the amount of drugs is 132.03 grammes of heroin and 2.26 grammes of methamphetamine hydrochloride. So adding together the weight, the total weight of the drugs would be 134.29 grammes. I will sentence according to the guideline laid down for heroin in the case of The Queen v.Lau Tak Ming and another [1990] HKCA 96 where the Court of Appeal recommended that for trafficking in between 50 to 200 grammes would merit a starting-point sentence of 8 to 12 years’ imprisonment.

Therefore, in this case, for 134.29 grammes, I would consider that a sentence of between 10 to 11 years’ starting point would be reasonable in the circumstances.

The defendant has a poor record for someone who is aged 44. I will take the 11 years’ starting point and it will be enhanced by the international element and according to HKSAR v Chung Ping Kun [2014] 6 HKC 306, the Court of Appeal had recommended that for trafficking of up to 200 grammes, with the international element enhancement should be about 6 months.

And then there is, of course -- I consider that, in the circumstances, the enhancement should be one of 6 months because I do not agree with the observation of the Court of First Instance judge in the case that was referred to by Mr Yu; in HKSAR v Wong Wah Ching [2016] HKCFI 672 that the enhancement was 3 months because the Court of First Instance judge there considered that the quantity mattered and so he enhanced in that case, for trafficking in 87.7 grammes of heroin from mainland China into Hong Kong, by only 3 months.

Because from my reading of the Court of Appeal case, I consider that the Court of Appeal was saying that for bringing into Hong Kong drugs across the border, the enhancement would be up to 6 months for trafficking in up to 250 grammes of drugs. But even if I am wrong, the enhancement of 3 months in Wong’s case was for a quantity of 87.7 grammes of heroin. In here, we have 134.29 grammes. So in any event, the enhancement of 6 months I consider to be reasonable in the circumstances.

Now, as for the issue of self-consumption, as Mr Yu correctly pointed out, it is evident that the defendant has a drug problem, as can be seen from her previous record and also in the fact that her urine, when tested, had amphetamine.

Now, after arrest, the defendant claimed that all the drugs were for her own consumption. However, the defendant was unemployed at the time, living on CSSA $2,000 a month. It is very clear that she could not afford the drugs. I have no doubt that she may probably help herself to a small, insignificant amount of the drugs she was carrying, but it would nowhere be near the 10 grammes as claimed by her.

So I will give a 6 months’ reduction for the point of self-consumption, thus reducing the sentence back to 11 years. And giving the defendant the full one-third discount, she is thus sent to prison for 7 years and 4 months.

I have taken into account the letters written by the defendant’s mother and daughter but, really, the hardships that the defendant faced when she was young. She is now aged 44 and she can no longer rely on that. She is not a young girl of 20 where she can say the hard childhood circumstances has driven her to act as she did. So I do not take that into account at all.

Hopefully, the defendant is sincere in her desire to keep out of prison after today and after this offence and that she has turned to religion to help her, which is a good step in the right direction.