HKSAR v. Wong Wing Chi

HCCC 83/2018

[2018] HKCFI 2259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 83 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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The defendant pleaded guilty before a Magistrate on 5 March 2018 to two counts of Trafficking in Dangerous Drugs and was committed to the Court of First Instance for sentence, pursuant to section 81B of the Magistrates Ordinance, Cap. 227.

Particulars of the 1st Count are that she, on 24 January 2017, at Harbour Plaza Resort, City Tower 2, No 18, Tin Yan Road, Tin Shui Wai, unlawfully trafficked in 1.39 grammes of a crystalline solid which contained 1.28 grammes of methamphetamine hydrochloride, commonly known as ‘ice’.

Particulars of the 2nd Count are that she, on the same day at Room 2856 of the same address, together with one Lau Sze‑man unlawfully trafficked in a 67.26 grammes of a crystalline solid which contained 60.45 grammes of methamphetamine, and 0.12 grammes of a solid which contained 0.09 grammes of cocaine.

The defendant confirmed her pleas before me and admitted to the contents of the Summary of Facts, read out to her.

Summary of Facts

The premises mentioned in the particulars of the two counts is a hotel. The said Lau Sze-man, herein after as “Lau”, named in Count 2 was intercepted by police officers at the front desk of the lobby on the charge date. The defendant was stopped at the same time when she was leaving the hotel.

The defendant’s handbag was searched. One plastic bag containing the ‘ice’ in Count 1 and a hotel room key card were found. The defendant was arrested and cautioned. She had nothing to say. Lau was also searched and a hotel room key card was found on her.

The two were brought to Room 2856 of the hotel. The room door was opened with the key card found on the defendant. A search was conducted and two inhaling devices were found on the coffee table inside the room. One of them had 32 millilitres of a liquid containing methamphetamine.

And electronic scale, 232 empty transparent re-sealable plastic bags, 83 straws and a roll of aluminium foil were found on top of a set of wooden drawers.

The drugs in relation to Count 2 were found in 10 different plastic bags. Four of them were from inside a paper box and that was stuck between the cushions of the sofa. The rest were found inside a plastic box concealed by a rolled‑up towel and placed on the upper rack of a shelf in the bathroom.

Hotel record confirmed that the defendant and Lau had been staying at the hotel on and off since December 2016. They changed rooms frequently, so much so that the hotel manager started to pay attention to them. Immediately before their arrest, the two had been staying at the hotel since 8 January 2017 and had changed room six times.

Hotel closed circuit television footages show a non‑ethnic Chinese male taking the lift up to the 28th floor at 2.39 pm on the day. The defendant went down to the lobby at 4.03 pm, headed to the front desk and then went back up to the 28th floor. At 5.54 pm, the defendant, Lau and the man went down to the ground floor from the 28th floor. Two minutes later, the defendant and the man left the hotel together, while Lau went to the front desk. The defendant and Lau were arrested shortly afterwards.

The estimated street value of the seized drugs was $19,835.

The last paragraph of the Summary of Facts, to which the defendant had admitted, states that the defendant now admits and accepts that she possessed the dangerous drugs seized, both from her handbag and Room 2856, for the purpose of unlawful trafficking.

Previous convictions

The defendant has nine convictions from four court appearances. Six of those convictions are drug-related. Four were for possession of dangerous drugs, one for possession of equipment intended for smoking dangerous drugs; and one for possession of a Part I poison.

Her last four convictions were all dated 19 January 2016, when she was sentenced to receive treatment at the Drug Addiction Treatment centre.

Mitigation

The defendant is 30 years old. She has a nine year old daughter and a six year old son. She received education in Hong Kong up to Secondary 3 level. The defendant had worked as a hair stylist, makeup artist, salesperson and waitress before. She became a housewife in 2009.

Letters in mitigation from the defendant herself, her daughter, elder sister, her pastor were submitted, all seeking leniency.

The defendant has been making good use of her time while in custody and has obtained some impressive grades in both English and Religious studies.

In mitigation, the court was told that the defendant is heavily addicted to ‘ice’, consuming between 2 to 3 grammes a day. Counsel was instructed to inform the court that up to 25 per cent of the total ‘ice’ was for her own use.

Sentencing guidelines and approaches

The sentencing guidelines for trafficking in ‘ice’ were laid down in the case of HKSAR v Tam Yi‑chun, CACC 534/2011. Subject to enhancement for aggravating factors and reduction for mitigating factors, the tariff to be imposed after trial of trafficking between 10 and 70 grammes of ‘ice’ is 7 to 11 years’ imprisonment.

Given that the drugs in Count 1 were found on the defendant as she was leaving the hotel after having come down from the 28th floor, which is where the drugs in Count 2 were found and was where the defendant had been staying, I find that the proper sentencing approach is to combine the quantity of all the ‘ice’ seized when applying the guideline sentence and impose a concurrent sentence for both counts. Both counsel for the prosecution and defence, agreed with this approach.

I find that, since the quantity of cocaine in Count 2 is so small, if converted, its sentence would have no impact on the sentence for the ‘ice’. For that reason, I will disregard the cocaine in sentencing the defendant on Count 2. Again, both counsel agreed with this approach.

The starting point

A strict mathematical approach to the guideline tariff would lead to a starting point of 125 months’ imprisonment for 61.73 grammes of ‘ice’. This is the starting point I adopt.

Aggravating factor

In relation to Count 2, a possible aggravating factor is that the offence was committed jointly with Lau. However, in Lau’s own trial, her count was amended from trafficking jointly with the present defendant and others, to that of conspiring to traffic with them. Lau was acquitted unanimously by the jury, after trial.

I inquired with Ms Lam for the prosecution, as to whether the defendant should be sentenced on the basis that she had committed the offence with Lau, or since Lau had been acquitted by the jury on essentially the same factual basis in a similar count, this court should pay due regard to the jury’s finding and not sentence the defendant on the basis that she had committed Count 2 jointly with Lau.

Ms Lam, very fairly, accepted that the defendant should not be sentenced on that basis. However, Ms Lam pointed out that, the defendant gave evidence in court that Lau Sze‑man never conspired with anyone to traffic in the drugs in the hotel room. The defendant’s own words were, and I quote, “The one who conspired with Ma Yik was me”.

On this possible aggravating factor, I note first of all that in the particulars of Count 2, only Lau has been named as an accomplice. There is no mention of Ma Yik or any other unknown accomplices. Yet, in Lau’s case, her conspiracy charge particulars did include those co-conspirators.

Furthermore, I find that it would not be fair to the defendant if she is sentenced on the basis of her evidence given in Lau’s trial, without having given her a proper warning when she gave evidence in the other trial, that her sentence might be affected. The defendant could have given evidence that she herself was trafficking in the drugs and not Lau. She could have chosen not to answer any questions that might affect her sentence, and her evidence might still be sufficient to exonerate Lau.

I, therefore, find that under the circumstances, the defendant should not be sentenced on the basis that she had committed Count 2 jointly with Lau, and neither should she be sentenced on the basis of her testimony in Lau’s trial, about her conspiring with Ma Yik to traffic in those drugs, for the reasons given.

Mitigating factors

As mentioned above, it was originally put forward that 25 per cent of the ‘ice’ were for her self‑consumption.

However, because of the evidence given by the defendant in the trial of Lau concerning the same drugs found in the room, I indicated to defence counsel, Mr Hemmings, that I was not prepared to accept, without further evidence, that up to 25 per cent of the ‘ice’ was for self‑consumption.

The case was adjourned, after my indication, so that transcripts of the defendant’s evidence could be made available to counsel. At the resumed hearing, Mr Hemmings told the court that the defendant had decided not to pursue a discount based on self-consumption having had the opportunity to read the transcripts.

Be that as it may, for the sake of completeness, I find on the basis that the defendant had never mentioned in her testimony in Lau’s trial, not in any of her previous interviews with the police, nor in her Summary of Facts, that any of the drugs in the hotel room were for her self‑consumption, there would have been insufficient evidence to support the defendant’s original claim that up to 25 per cent of the drugs were for self-consumption, had that been pursued.

I have further considered whether the facts that the defendant was a drug addict and that she said in Lau’s trial, that the drugs found in her handbag in Count 1 were left-overs from her own use and to be shared with her friends, should cause her to be entitled to a discount for self‑consumption.

My decision is that they should not. The reason being that the quantity of the ‘ice’ involved in Count 1 is 1.28 grammes. Even if they were all to be for the defendant’s self‑consumption, it would only be 2 per cent of the total narcotic contents. This cannot, even remotely, be regarded as a ‘significant proportion’. As such, I would not have granted the defendant any discount on the basis of self‑consumption in relation to Count 1 either.

The only mitigating factor is the defendant’s timely pleas of guilty. For that, she is entitled to the full one‑third discount, resulting in a sentence of 83 months’ imprisonment.

Totality

The defendant is sentenced to 83 months’ imprisonment on each of the two counts. The sentences are to be served wholly concurrently. The final total sentence is therefore 6 years and 11 months’ imprisonment for the two counts.

This is the sentence.