HKSAR v. Foo Po Ying

HCCC 222/2018

[2019] HKCFI 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 222 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 had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 25.44 grammes of a crystalline solid containing 25.36 grammes of methamphetamine hydrochloride, and one count of possession of dangerous drug, namely 1.76 grammes of a solid containing 1.41 grammes of cocaine, 21 tablets containing 0.04 grammes of phenazepam, and 12 tablets containing 0.04 grammes of nimetazepam.

The defendant was seen on 21 September 2017 walking around in Causeway Bay at the junction of Paterson Street and Great George Street and met up with a male. The defendant was intercepted and subsequently taken back to her residence and upon a search of her bedroom were found the drugs which is the subject matter of Charge 1 and also found were the drugs which was found in two plastic bags, which is the subject matter of Charge 2.

Under caution, she was interviewed. On the video recorded interview, she said that she had bought all the drugs from a man for about HK$3,000, that she was unemployed and had no income, and that she was addicted to “Ice” and that she also consumes cocaine and the “No. 5” seized.

The estimated retail value of the drugs in the first charge was around $8,370.

It is a sad story when one looks at the defendant’s previous. She, although is only aged 30, she has got four previous convictions, all relating to drugs, since 2010, and she was in 2013 convicted of trafficking in dangerous drugs in the District Court, for which she was sentenced to 4 years and 8 months, and, despite the fact that she had been given DATC twice before, she has still committed the present offence. She is unfortunately a mother of a 10‑year-old son and, for most of her son’s life, the defendant has been in and out of detention.

According to Mr Woon, who submitted the prison pastor’s letter, the defendant claimed that she will turn over a new leaf. She has not done so up to now and she will have to prove that she will indeed turn over a new leaf.

Mr Woon, in mitigation, said that the defendant is a drug addict, is addicted to “Ice”, and claimed that part of the methamphetamine in the first charge was for her own consumption. I said that perhaps she may be tempted to take a little bit for herself, but I am not prepared to consider that any significant amount was for her own consumption, as she is unemployed. How can she afford it?

She also claimed in the video recorded interview that she also consumes cocaine and the “No. 5” seized.

Looking at the drugs in relation to the 1st count, the case of the Court of Appeal, Tam Yi Chun [2014] 3 HKLRD 691, has suggested that for trafficking in between 10 to 70 grammes of methamphetamine hydrochloride would merit a sentence of between 7 to 11 years’ imprisonment after trial.

So, for the defendant’s 25.36 grammes of methamphetamine, I would adopt a starting point of 7½ years, and giving her the full one-third discount for her early plea would reduce it to 5 years’ imprisonment.

Now, for the charge of possession of the dangerous drugs in Charge 2, I would consider that a 12-month starting point would be appropriate and reducing it to 8 months because of her plea.

However, there is a latent risk factor, taking into account the defendant’s drug history and also the fact that she is unemployed, so there is this latent risk that she may, because of the lack of funds, also be tempted to spread these drugs around for money or to share with her friends, as she alleged in mitigation.

And so, taking into account all that, although I will not increase the 12 months’ starting point and reducing it to 8 months because of her plea, when considering the totality, I would make the sentences thus:

On the 1st count, the 5 years, I will reduce it by 4 months to take into account Mr Woon’s mitigation that, when arrested, she was found with amphetamine in her urine, so I will give her 4 months off to take into account the fact that she does take amphetamine and that the methamphetamine in the 1st count, 4 months of which will be for her own consumption. So she goes to prison for 4 years and 8 months on the 1st count.

And then, for the 2nd count, it remains the same. 8 months’ imprisonment on the 2nd count, 4 months consecutive and 4 months concurrent.

So the defendant goes to prison for a total of 5 years.