HKSAR v. Choy Yan Ling

HCCC157/2018

[2018] HKCFI 2361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 157 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 14 May 2013, Choy Yan-ling, hereafter referred to as the accused, was committed by a magistrate for sentence to this court following a plea of a guilty and an acceptance of the summary of facts which were read to her.

Facts of the case

On 5 September 2017, shortly after 9.30 pm, police officers on patrol saw the accused opening a gate and main door of a room at Kin Ming Estate, in Tseung Kwan O. Police officers noticed that the accused was carrying a recycling bag full. They intercepted the accused and entered the premises and searched therein. Inside the flat there were two further males. They found some plastic transparent resealable bags, an electronic scale, an inhaling device containing 11 millilitres of liquid which was found to contain 0.04 grammes of a solid containing methamphetamine. A packet of straws, a packet of tinfoil and a lighter were also found on the table in the living-room.

A personal search was conducted on the accused. They opened the recycling bag and found: (1) one plastic bag containing two plastic bags containing a total of 28 grammes of a crystalline solid containing 27.8 grammes of methamphetamine hydrochloride, commonly referred to as ‘Ice’; (2) two plastic bags containing a total of 12 grammes of a crystalline solid containing 12 grammes of methamphetamine hydrochloride; (3) four plastic bags containing a total of 4.72 grammes of a crystalline solid containing 4.62 grammes of methamphetamine hydrochloride; and (4) one plastic bag containing a further plastic bag containing 7.61 grammes of a mixture containing 5.98 grammes of heroin hydrochloride.

The total quantity of dangerous drugs seized was 44.72 grammes of a crystalline solid containing 44.42 grammes of methamphetamine hydrochloride and 7.61 grammes of a mixture containing 5.98 grammes of heroin hydrochloride.

Following the search the accused was arrested and cautioned. In answer to the caution she said, “Ah sir, I have been caught red-handed by you. Those packets of cold stuff and ‘4 Chai’ are intended for selling to customers and any left over will be for my own consumption”.

A short time later the accused was interviewed under caution and the interview was video recorded. In this interview she told the officers that “cold stuff” was a reference to dangerous drug ‘Ice’ and the reference to “4 Chai” was a reference to heroin. She told the officers she had bought the drugs for $10,000. As to the use of the drugs that she purchased she intended to sell them for $100 per 0.03 grammes packet of ‘Ice’ and for a packet of 0.01 grammes of heroin she would sell that for $100. She would consume the remaining drugs not sold for her own consumption.

As to the premises in question, she admitted that the flat was owned by her boyfriend’s brother who allowed her to live in the flat and gave her the keys to the flat. Two males were found in the flat were her friends. She also admitted that the transparent resealable plastic bags and the electronic scales were for weighing the drugs. The drug inhaling device, the lighter, the packet of straws in the tinfoil were for taking drugs. She admitted that all of that belonged to her.

It was admitted that the estimated retail value of the methamphetamine hydrochloride seized in this case was just over $14,700 and the heroin $6,499.

Further, it was admitted that following her remand to Tai Lam Centre for women on 7 September 2017, amphetamine and opiates were detected in her urine when that test was undertaken on 8 September 2017.

Background of the accused

The accused was born in Hong Kong and she is 39. She was educated to primary school Form 2. Previously she had worked as a salesperson earning about $1,000. However, that was a long time ago and she has been unemployed ever since. In broad terms, she is in good health although she has been taking ‘Ice’ on a daily basis for about three years, consuming a substantial quantity of that. She has been an addict for 25 years in relation to heroin and she consumes a substantial quantity of heroin as well.

The accused has a history of drug convictions since 1999. In 1999 she was convicted of trafficking in dangerous drugs. She was also convicted in 2010 of the same offence. In addition, there are two other convictions for possession of dangerous drugs, the last one being in 2010. Perhaps curiously, she has never been ordered to be detained in a Drug Addiction Treatment Centre.

Sentencing principles

Tariff for ‘Ice’

The community of Hong Kong and, as a result, the courts of Hong Kong have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. The ingestion of ‘Ice’ has terrible consequences for the individual. In view of her drug history, the accused probably knows that as well as anyone. ‘Ice’ is savagely addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to this drug. Further, the conduct of persons affected by ‘Ice’, both in private, and perhaps more pertinently in public, can be quite dangerous. The dangerous addictive quality of heroin is also too well-known to need reciting here.

The view of the community and thus the courts is reflected in the nature of the sentences and the levels of those sentences traditionally imposed for trafficking in ‘Ice’ and heroin. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of the charge in this case. In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested that for quantities involved in the present case, which is 44.42 grammes of ‘Ice’, that is for quantities between 10 grammes and 70 grammes, would attract a sentence of between 7 and 11 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

Heroin

In relation to heroin, the guidelines were articulated in R v Lau Tak Ming & Yeung Wai-Shing & Ors [1990] 2 HKLR 370. The relevant sentencing band applicable to this case is for quantities up to 10 grammes a sentence of between 2 and 5 years is appropriate.

In this case the accused asserts that part of the collection of drugs which were found in her possession was for own consumption.

Relevance of possession for self-consumption

The authorities clearly recognise that on a trafficking in dangerous drugs charge that possession of some of the drugs subject of the charge for self-consumption is a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and more recently in HKSAR v Chau Chun Sang [2012] 2 HKLD 1121.

However, as the Court of Appeal in HKSAR v Wong Suet Hau and HKSAR v Chau Chun Sang made plain, possession of dangerous drugs is a serious offence in itself and there is also the issue of “latent risk” to consider. If any of the portion of drugs for trafficking found in the possession of the accused are found as a fact to be for personal consumption of the accused, assuming the latter quantity is a significant quantity, the courts have provided guidelines as to what reduction in an otherwise appropriate sentence for trafficking might be appropriate.

In HKSAR v Chau Chun Sang to which I have made reference, the Court of Appeal made the point, “When all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point”. The court went on to list a number of factors to weigh in the balance in determining the appropriate reduction of an otherwise appropriate sentence for trafficking. These principles were recently restated in HKSAR v Tam Ling Yuen CACC 159/2015.

The procedure in HKSAR v Wong Suet Hau

Where, as here, there is a dispute as to the facts germane to the appropriate sentenced to be imposed, it is sometimes necessary to hold what is known as a Newton Hearing (R v Newton (1982) 4 Cr App R (S) 388). Lord Lane CJ observed in R v Newton that:

“It would be open to a court to assume a jury function and reach a conclusion after hearing evidence. Alternatively, the court could hear no evidence and reach a conclusion after the hearing of submissions of counsel” ((1982) 4 Cr App R (S) 388, 390).

Consistent with these observations of Lord Lane CJ in R v Newton in HKSAR v Wong Suet Hau & Anor (above), the Court of Appeal held that it was not always necessary to hold a Newton Hearing. In this regard it was observed ([2002] 1 HKLRD 69, 78-80):

“The answer to the question which was raised when leave in both of these appeals was given, namely, what a sentencer should do when the trafficker says that part of the drugs were for his own consumption, is that, where appropriate, this element should be taken into account when sentence is imposed because all sentencing must be based on a version of the facts which properly reflects the justice of the case”.

The Court of Appeal then observed that appropriate care needs to be taken in analysing the validity of any assertion on the part of the accused that all or part of the drugs in the possession of the accused were for personal consumption and the court then continued:

“In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned and rented in the trafficker’s own name or in somebody else’s name, or whether they are being carried in a public place;

(d) presence of paraphernalia associated with the drugs, on the one hand, items for packaging, weighing and diluting drugs and, on the other hand, items which are used for the consumption of drugs;

(e) whether the defendant is an addict, or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences”.

In my judgment, the instant case is well capable of being resolved in the manner contemplated in HKSAR v Wong Suet Hau & Anor (above).

Sentencing where multiple drugs are found

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there is a collection of different drugs to which the accused has pleaded guilty. The authorities identify different approaches. The approaches identified in the authorities recognise that an approach for each component of the collection of the drugs in which the accused was trafficking might, if they were simply added together, produce a result which was unjust.

This is, in the final result, a reflection of the basic principle that sentencing is an art and not a mathematical exercise and the art of sentencing is devoted to producing a just result given the circumstances of the defendant. A just result in this context against that background is that the imperative which arises from the community and thus the courts to take a very strong view in relation to the trafficking of dangerous drugs.

The different approaches were articulated in HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Chan Yuk Leong CACC 318/2013. The approaches identified in the authorities recognised that an approach where the sentence for each component of the collection of drugs in which the accused was trafficking might, if simply added together, produce a result which is likely to be unjust.

The essence of the appropriate approach is that if the drugs are of approximately similar in nature then the approach known as the “combined approach” will be appropriate, (see HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, para 3). The Court of Appeal in that case, Cheung JA and Tong J, said there might necessarily have to be adjustments, even if the combined approach is used, to avoid absurdity. The concern to avoid absurdity and to do justice in the circumstances was underlined in HKSAR v Chan Yuk Leong (above).

In HKSAR v Wong Kin Kau (above), the Court of Appeal, in dealing with three kinds and drugs, ‘Ice’, ketamine and herbal cannabis, indicated that whichever approach is adopted, the paramount consideration was the totality of the overall starting point. It appears to me that the combined approach would probably best meet the justice of the case here.

Discount for a plea of guilty

For many years it has been the policy of the courts of Hong Kong to reward an accused who takes responsibility for his or her conduct and pleads guilty at the earliest possible moment. Our courts have recognised that the discount to be accorded to an accused in the circumstances is one-third. That is entirely appropriate in the circumstances.

Application of sentencing principles - starting point

The first stage of the sentencing process is to fix a starting point for sentence. That point is the level of sentence that would be appropriate had the accused pleaded not guilty and had been convicted after trial. Approaching this on the basis of an appropriate starting point for ‘Ice’ in this case, the starting point is 8 years and 8 months. In relation to heroin, the appropriate starting point would be 2 years and 6 months.

However, if those sentences were added together, they would produce an unjust result and it seems to me, the appropriate approach would be to add a quantity of heroin to the quantity of ‘Ice’ and identify the starting point on the premise that the whole of the quantity was ‘Ice’ and adjust it appropriately. This is on the premise that for sentencing purposes ‘Ice’ is regarded as a more serious problem for Hong Kong, in both social terms and in respect of the impact on the individual, than is so compared to heroin. The difference in sentencing approach as between the two drugs also informs this process.

If one took a completely mathematical approach the starting point for this would not fairly reflect the justice of the case. On the premise that one looks at the heroin as adding about -- sorry, when one looks at the heroin as approximately equivalent to about 2 grammes of ‘Ice’, it seems to me that an appropriate starting point would be 8 years and 10 months.

Adjustment for self-consumption

The evidence is that the accused is a very long-term addict in relation to heroin and has been addicted to ‘Ice’ for the past three years. Further, it is admitted in her urine test taken three days after she was arrested reveals the presence of both opiates and amphetamines. That is consistent with the assertion by the accused of addiction to both heroin and ‘Ice’. Further, the accused was found entering premises where she lived. Inside those premises there was paraphernalia fit for the consumption of both drugs.

In addition to that, the accused admitted that she intended to sell some of the drugs and keep the remainder for her own consumption. I have no direct information as to the relative proportion of drugs, but it is clear on the basis of the facts admitted in this case that the proportion would be substantial.

In my judgment, whatever proportion was for sale and what was for her own consumption there is an additional concern for the latent risk that a portion that was for her own consumption could fall into the wrong hands. Indeed, the wrong hands in this case may well have been in the flat at the time of her interception and arrest.

Further, it must be recognised that possession of dangerous drugs for self-consumption is of itself a serious offence and well capable of attracting a prison sentence. That has to be weighed in the balance in assessing what might be an appropriate adjustment to the starting point on account of proportion of the drugs in her possession for personal consumption.

I have also to consider in this context the fact that, on the admissions made by the accused, she told the police what would be left over for her would be for her own consumption. In that regard, I have not overlooked that some of the precise figures were given by the accused for her own consumption. However, it seems to me that even with this information, it does not tell me a great deal, if anything, about the relative proportion of drugs for the sale for personal consumption.

Doing the best I can in the circumstances and making allowance for the proportion of drugs in her possession, I think it is appropriate to reduce the starting point by 15 per cent. As I have already indicated, the appropriate reduction in sentence on the basis that the accused pleaded guilty at the earliest possible moment is a reduction of one-third.

Doing the best I can to temper justice with mercy I order that you be sentenced to 5 years’ imprisonment.