HKSAR v. Shek Po Sin

HCCC 176/2018

[2019] HKCFI 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 176 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 was charged with one count of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134. She pleaded not guilty and was found with not guilty by the jury after trial of trafficking drugs but guilty of possession of those drugs.

It was common ground and not disputed by the parties that on 21 October 2017 at 12.35 am, defendant was stopped by police officers outside Kwai Chung Plaza, Kwai Foo Road, Kwai Chung. When her handbag was searched, the police found a smaller zipped bag inside containing four transparent resealable plastic bags containing 19.38 grammes of a solid containing 19.08 grammes of ‘Ice’, one transparent resealable plastic bag containing 0.95 grammes of a solid containing 0.69 grammes of cocaine and two transparent resealable plastic bags containing a total of 37 unused transparent resealable plastic bags. The police, found in her handbag itself, a smartphone containing two sim cards and cash of just over $700.

She was arrested for trafficking in dangerous drugs and remained silent after she was cautioned. There was no house search because she subsequently told the police that she had no fixed abode. She would sleep here and there which was obviously not true. I suspect she said this to avoid a house search.

During the trial and the defendant’s evidence, she gave evidence to the contrary. She said she lived most of the time at her boyfriend’s family home very close to her workplace with the occasional night spent at her mother’s home.

The defendant’s case was that she had just met her drug supplier to purchase ‘Ice’ from him when she was arrested. She normally purchased 14 grammes twice a month when she was paid her salary cash in hand. She would consume nearly 1 gramme per day and the drugs would last her about a month. The other three bags of ‘Ice’ and bag of cocaine were left over from previous purchases but were in her bag because she had nowhere to hide her drugs from her employer, her boyfriend, his family or her own family. She always carried her drugs with her everywhere she went despite the risk of arrest. The empty resealable plastic bags were from her shop and normally used to pack accessories. She took them so she could divide up the ‘Ice’ into smaller, daily dose bags for her own convenience.

The majority of the jury was convinced and found the prosecution had not proved beyond reasonable doubt that she was trafficking in those drugs. She was unanimously convicted of possession of dangerous drugs.

The defendant is 31 years old and was born in Hong Kong. She received an education up until Form 5 and her evidence was that she had been working as a saleswoman in the same shop for several years and was earning a monthly salary of $15,000 per month. She is single. Her mother and her older brother live together and she only sometimes goes back to have a meal with her mother but most of the time lives with her boyfriend and his family.

She is not a woman with a clear record. In fact she has 10 previous convictions recorded over 7 court appearances and all but 3 are related to drugs. In 2010, she was convicted on two separate occasions for possession of dangerous drugs. In 2011, she was sentenced to 40 months for trafficking in ketamine. In April 2015, she was sentenced to a drug addiction treatment centre for possession of dangerous drugs and in September 2016, she was sentenced to 16 months’ imprisonment for possession of dangerous drugs.

Her last conviction is dated March 2018 and was after her arrest for this offence. The term of imprisonment was imposed after her arrest so it must mean she was on bail prior to her arrest for this offence. I have been told she was arrested and bailed out only six days prior to this arrest.

Her criminal record and terms of imprisonment or detention in 2015 and 2016 throws doubt on her evidence that she was gainfully employed since 2013 and had the means to pay for her heavy drug habit. She did not produce any evidence of her employment and income.

I had to call for a drug addiction treatment centre report and it subsequently does not recommend such an order nor find her suitable. The defendant agrees the contents of the report are accurate. In it, she herself says she worked on and off in the boutique until she was arrested.

Mr Ching, counsel for the defendant, has said all he can to say on behalf of the defendant in mitigation. He accepts that the latent risk factor may enhance the sentence but says the risk is low and at all at most, medium. He acknowledges that the court can enhance the sentence for recidivism and the fact the defendant was on bail at the time of arrest for a similar offence. He asks the court not to enhance the starting point so much that it is excessive for a charge of possession of dangerous drugs. Being on bail at the time of her arrest for this offence can be treated as an aggravating factor.

It is a given and the overall effect of authorities reveals that ‘Ice’ is a seriously addictive drug and its addictive nature make it so difficult for those who seek to rid themselves of its addiction, even if determined. Consequences of its injection are very serious for the abuser and has a knock-on effect in the community. If the defendant had been convicted of trafficking in those drugs, she would have faced a 7 year and 7 month sentence.

There is no tariff for possession of drugs but probably the best starting point in this regard is HKSAR v Mo Cho Tik [2001] 1 HKC 261. In that case, the Court of Appeal was asked to consider a case of possession of 15.7 grammes of ‘Ice’. In that case, Stock JA observed at page 267:

“The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession would be in the range of 12 to 18 months, but that was not the be all and end all of the appropriate starting point.”

He also added,

“Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

That court adopted the starting point of 18 months’ imprisonment, which was to be enhanced by 12 months for the risk factor inherent in the possession of such a quantity of dangerous drugs. In HKSAR v Singh, CACC 96/2016, the Court of Appeal was faced with sentencing an addict in possession of 6.82 grammes of ‘Ice’. There the court considered that a starting point of 15 months was appropriate and enhanced the sentence by 12 months for the latent risk factor,

The courts have recognized that in the context of possession dangerous drugs there is a risk of those drugs being disseminated beyond the abuser. There is the latent risk. Enhancement is not merely for a significant quantity of drugs. It is also not to be employed as form of disguise to sentence the defendant for trafficking in the drug subject to the charge.

In HKSAR v Minney, Fok JA as he then was, observed at this authorities 2011 3 HKLRD 556 or 4 HKC 136, at paragraph 28:

“In our opinion, there could be no objection to a sentencing court taking into account the relevant circumstances of the case. In determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offenders. That is not to say that the court attributes to the defendant an intention to traffic in the drugs, but simply reflects that the fact the quantity and circumstances of their possession are such as to pose a risk to society.”

In that authority, there was a challenge to the validity of the latent risk factor as a sentencing consideration but it was rejected by the Court of Final Appeal. In HKSAR v Wan Sheung Sum [2001] HKLRD 405, the Court of Appeal held that there should be a three-step approach adopted when determining an appropriate sentence for an offender who was a bona fide user and convicted of simple possession of a dangerous drug. The first step is to identify a starting point appropriate for the offence between 1 year to 18 months. The second stage of that process is the assessment of the latent risk to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the defendant’s. The latent risk will be determined from the quantity of drugs possessed or the circumstances in that particular case as well as the personal circumstances of the defendant. Here, the defendant was carrying those drugs outside of her home. According to her, she carried them on her at all times. The quantity of ‘Ice’ can be described as significant and she was carrying two types of drugs. The last step is to adjust the total sentence to take into account mitigating factors such as a guilty plea. According to the record, this defendant did not indicate at the committal stage that she had admit possession of the drugs as an alternative to the charge. If she had, she would then benefit from a full one-third discount. She did not give this indication until after the trial days were fixed but before the first day of trial at a case management meeting on 12 September 2018. If the court is to take that as the date of indication, she would only be entitled to a discount of between 20 and 25 per cent.

Here the defendant is not suitable for admission into the drug addiction treatment centre and because of the quantity of drugs and her previous criminal record, a term of imprisonment is inevitable. For that amount of ‘Ice’ and cocaine, I find an 18 months term of imprisonment an appropriate starting point. I am aware that the defendant in her trafficking conviction in the district court said to the sentencing court in mitigation that she had bought $2,000 worth of ketamine to sell for $4,000 in order to make a $2,000 profit to feed her own drug habit. This defendant is well aware of the benefits of selling even her own drugs to others. As McWalters JA said in HKSAR v Lee Chun Man, CACC 360/2014 at paragraph 17:

“It is notorious that drug abusers may resort to selling drugs in order to fund their addiction or, in a social setting, share their drugs with others.”

He goes on to say in paragraph 19 on the question of how much the initial starting point is enhanced:

“The amount of the enhancement will depend on the degree of the latent risk. The higher the level of risk the greater the amount of enhancement. It will therefore be necessary for the sentencing judge to assess the degree of risk for it is the judge’s assessment of the degree of risk that will guide him in his determination of the amount of enhancement. The cases would suggest that the enhancements made by the courts range from 6 months for a low degree risk to 18 months or more for a very high degree of risk.”

The assessment of the latent risk is essentially a matter of common sense. However, I have also taken into account factors to be considered in assessing the level of risk set out in paragraphs 25 and 26 of that same authority.

I find the degree of risk is high because the drugs were on the street with defendant and they were packaged in several packages and in such a way that redistribution or resell was very easy and possible. The defendant said she had the financial ability to buy in bulk twice a month but I have said above, her employment history she relies on is in some doubt because of her terms of detention in 2015 and 2016. I doubt she is as financially stable as she claims.

I have also taken into account the quantity of drugs namely the 19.08 grammes of ‘Ice’ which is a large quantity. According to HKSAR v Tam Yee Chun [2014] 3 HKLRD 691 at paragraph 27, the average daily consumption of a regular user of ‘Ice’ was in the range of 0.1 and 0.5 grammes and therefore the quantity in question would be enough for at least 38 days if she consumes 0.5 of a gramme per day or 191 days if she consumes 0.1 grammes per day.

According to the expert report in this case, the average daily consumption is 0.25 grammes so the quantity in question would be enough for 76 days for the majority of abusers. The defendant claim to consume 0.7 to 0.8 grammes per day and she says she has done so for several years.

Having consider the expert report in this case, Dr Cheung set out the psychological and physical consequences of a chronic ‘Ice’ abuser, and the only symptom the defendant says she suffers from is insomnia despite being a chronic abuser. Having observed her in court and hearing her say she functioned well before her arrest, I have grave doubt that she was a chronic abuser. I have grave doubt that she was consuming that much, almost 1 gramme per day. That means if she was consuming the average daily amount of an ‘Ice’ abuser, she had a large supply of ‘Ice’ on her person that would have lasted her well over a month. That makes the latent risk higher in my view.

Lastly, the defendant’s appalling record reveals she is a person who flouts the law and displays little or no concern about the consequences of her actions. After all, she was arrested for this offence six days after she was given police bail for her possession of drugs arrest. This is a factor I will take into account and I will enhance her starting point further.

All of the above factors suggest to me that there is a real risk of dissemination of the drugs and the degree of risk should be assessed as high, therefore an enhancement of 12 months to the starting point is appropriate. I would enhance that by a further six months to reflect the other aggravating factor which was she was on bail at the time of her arrest.

Having considered her mitigation, all the circumstances of the case and the quantity of the drugs, I will take the starting point of 18 months which I have added 12 months to for the latent risk factor and 6 months too for being on bail when arrested, totalling a starting point of 36 months. The defence suggests the defendant is entitled to a full one-third discount because they wrote to the Department of Justice before committal with a plea bargain, that being she would plead guilty to possession of dangerous drugs. The defence say that proposal was made twice and rejected twice. Prosecution says that correspondence was not an indication of plea, per se. It was a plea bargaining proposal, therefore the defendant should not be entitled to one-third discount.

Her first indication to the court of this plea as I have said, was not at the committal stage but at the case management hearing in September 2018 after trial dates were fixed. I have considered HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, particularly paragraphs 2002 to 2014 and find the first real indication of this plea was in September 2018. Therefore, she did not indicate she was guilty of possession of those drugs at the earliest opportunity and is therefore entitled to a discount of between 20 to 25 per cent.

I will therefore reduce the starting point by 8 months which is a discount of almost 22.5 per cent. Therefore the defendant is sentenced to 28 months for possession of dangerous drugs.