HKSAR v. Ma Sin Yee and Another

HCCC 179/2018

[2019] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 179 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Both defendants have pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Both defendants were jointly charged; being in Casa Hotel, Nathan Road, Yau Ma Tei, Kowloon, with a total of 46.67 grammes of a solid containing 40.81 grammes of cocaine, 166 grammes of a solid containing 148 grammes of cocaine hydrochloride which is a sort of cocaine and 2.04 grammes of a crystalline solid containing 1.99 grammes of methamphetamine hydrochloride.

Summary of Facts

On 23 December 2016, almost 2 years ago, the police raided a hotel room, Room 1302, Casa Hotel on Nathan Road, acting on information that the occupants were suspected to be involved in illegal activities. Upon entry, they found both defendants asleep inside. The police also found a total of 46.67 grammes of a solid containing 40.81 grammes of cocaine, 17 packets which contained a total of 166 grammes of a solid containing 148 grammes of cocaine hydrochloride and 2.04 grammes of a crystalline solid containing 1.99 grammes of ‘Ice’. These are the drugs of the charge.

The police also found apparatus containing traces of powder containing cocaine in items such as glass beakers and metal spoons. They also found lighters, wooden chopsticks, a pair of scissors, electronic scales, metal sifts, air filters and metal pot with a glass lid, a plastic knife as well as a plastic bottle containing a liquid containing traces of cocaine and one glass bottle containing 517 millilitres of a liquid containing ammonia and one glass bottle containing 570 millilitres of a liquid containing acetone.

The police also seized $38,721.60 from the 1st defendant and $4,084.30 from the 2nd defendant. They were arrested and cautioned and initially at the scene, the 1st defendant admitted that the dangerous drugs and all the apparatus belonged to her and had nothing to do with her boyfriend, the 2nd defendant. Under caution, the 2nd defendant denied the charge.

In a subsequent video-recorded interview, the 1st defendant admitted that the majority of the drugs seized was cocaine and there was a small portion of ‘Ice’. They were supplied by a foreigner called “Andy”. She would sell the drugs to her friends at $300 for half a gramme. There were other people who would also come into the hotel to buy drugs and the transactions would happen in the back staircase. The 2nd defendant would stay with her every night in the hotel room from about 8 pm until the next morning. She also said that the two glass bottle seized belonged to the 2nd defendant.

The cocaine was estimated to be worth $307,000-odd and the seized ‘Ice’ was valued at $125.

The 1st defendant

I have heard full mitigation put forward on behalf of the 1st defendant and her best mitigation is her plea of guilty. She is 28 years old and had a clear record. She studied up until Form 3 in Hong Kong. She was living with her mother after her parents divorced when she was about 15 but she had a difficult relationship with her mother. In early 2016 she left home because of their differences. She then lived with her father until she met her boyfriend, the 2nd defendant and they moved in together, staying in hotels about a month before her arrest. She had been unemployed for many months prior to her arrest. She relied on her savings and her boyfriend.

She has told the police that she had been a cocaine addict for about a year when arrested. She also told the police that a foreigner called “Andy” offered her free cocaine if she sold drugs on his behalf from her hotel room. She explained that she sold the drugs at $300 for half a gramme of cocaine.

The 1st defendant says she is remorseful and her remorse is demonstrated by her plea. She is sorry to disappoint and hurt her family, she has tried to better herself whilst in custody on remand by studying again and reaching out to God.

I have also considered mitigation letters from the 1st defendant and her father; I accept her remorse is genuine.

In mitigation, it was put forward for the 1st defendant that a substantial and significant proportion of the cocaine was for her own consumption and not for trafficking. This flies in the face of what she admitted to the police, namely she was given a quantity of drugs to sell on behalf of a man who offered her free drugs as a reward.

I have considered the value and the quantity of the drugs and find it very difficult to believe that this man would give her a significant proportion of the cocaine for her own consumption for free. At most, it would only be enough to feed her daily habit which cannot be said to be a significant proportion of the drugs if the...(indistinct) raison d’etre for her being given drugs by him was to sell the majority of it to others. I indicated I cannot accept a bare assertion from the bar table to put forward this submission. The 1st defendant has elected not to give evidence in a Newton hearing to support this mitigation.

A discount in sentence to reflect the element of self-consumption should only be given serious consideration when the court accepts and finds that a significant proportion of the drugs was for self-consumption, no discount should be given otherwise. I take into account the authority of HKSAR v Liu Ming Sze CACC 103/2016 and HKSAR v Tsoi Man Chun CACC 414/2015 where the Court of Appeal make this very clear. A sentencing court should be careful and be slow to entertain such a discount of sentence. I do not accept this part of her mitigation.

The 2nd defendant

The 2nd defendant is 49 years old and has 33 criminal convictions which include six convictions for possession of dangerous drugs and three convictions for trafficking in dangerous drugs. He was convicted in 2001, 2010 and February 2018 for trafficking in dangerous drugs. His last conviction was dealt with in the district court, DCCC 738/2017, and he was sentenced to 6 years and 3 months’ imprisonment.

I have heard full mitigation on behalf of the 2nd defendant and considered his mitigation letter and recent donation cards.

He does not challenge any facts in this case but the 2nd defendant initially alleged that the dangerous drugs involved in his last conviction where he was convicted of trafficking on 13 February 2018 came from the drugs in this present case. He had said those drugs he took from the drugs in this case was for his own consumption. He wanted this court to consider this fact and take it into account when sentencing. Obviously he wants the court to take into account the sentence he is already serving when considering the sentence for this offence.

Today, it is part of the mitigation that this case did not take place long after the District Court case and the starting point should come from the drugs of both cases being added together.

Here, we have two types of drugs, what can be described as a cocktail of drugs. It would be sensible to take a combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the drugs.

In this case, the vast majority of the drugs is cocaine with a small amount of ‘Ice’. As rightly pointed out by counsel, the sentencing tariffs for cocaine and heroin hydrochloride are the same. The amount of cocaine in this case is a total of 188.81 grammes. According to the Queen v Lau Tak Ming [1990] 2 HKLR 370, the starting point for trafficking in between 50 to 200 grammes of narcotics is 8 to 12 years’ imprisonment. The starting point for the total amount of cocaine in this case alone is 11 years and 8 months.

According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for trafficking in up to 10 grammes of methamphetamine hydrochloride commonly known as ‘Ice’ is 3 to 7 years’ imprisonment. The starting point for trafficking in 1.99 grammes of ‘Ice’ in this case alone would be approximately 3 years and 10 months’ imprisonment.

Agree with the counsel for the defendants that the combined approach be adopted in the present case. In sentencing, the court can either consider a combined approach or an individual approach where there is more than one drug and I have referred myself to several authorities dealing with cocktails of drugs including HKSAR v Leung Chun Pong [2009] 6 HKC 672 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443. Often, the combined approach is preferred and produces the more realistic sentence. If the individual approach was to be taken, the individual sentences would make a total of 15 years and 6 months if they were considered together. That would far exceed the criminality of the crime.

In this case the amount of ‘Ice’ was small compared to the cocaine. It represented a small percentage of the total drugs recovered. Therefore, the cocaine and cocaine hydrochloride being the majority of the narcotics in this case will be taken as the base for sentencing.

Mathematically speaking, a starting point of 11 years and 8 months is applicable to the cocaine and it would be appropriate to add 2 months to that to take into account the quantity of ‘Ice’ according to the conversion test, giving a starting point of 11 years and 10 months.

For the 1st defendant, after taking that approach to sentencing here, I have considered her previous clear record, mitigation put forward, her background, her full co-operation with the police, the quantity of drugs and the Court of Appeal guidelines. I am sure she genuinely tried to assist the police further with other information but nothing came of it. Lastly, I take into account her plea, which indicates her remorse. Accordingly and mainly for her previous clear record, I will take a slightly lower starting point of 11 years and 6 months for all of the drugs. The 1st defendant has pleaded guilty and is entitled to a discount of one-third which would be 46 months.

That, therefore, gives an ultimate sentence of 7 years and 8 months.

For the 2nd defendant, I have also taken into account all the mitigation put forward, his background as well as his plea. Unlike the 1st defendant, he is not a person with a clear record but has several trafficking dangerous drugs convictions. This is his fourth such conviction. He can be described as a habitual offender and a recidivist. This is an aggravating factor I can and will take into account.

I can also regard the fact he committed this offence whilst on bail for his last trafficking in dangerous drugs conviction. He had been on bail for 3 months when he was arrested again for the same offence. These two aggravating factors will increase the starting point of 11 years and 10 months. I will take that starting point of 11 years and 10 months and increase it by 2 months for the fact he was on bail when arrested and a further 3 months to highlight the seriousness of this recidivist’s habitual reoffending.

Accordingly, the starting point is 12 years and 3 months. The defendant is entitled to a discount of one-third, therefore he is sentenced to 8 years and 2 months after a discount of 49 months is applied to reflect his plea.

I will take into account the fact he was sentenced to 6 years and 3 months on 13 February 2018 by the District Court. I have had sight of the reasons for that sentence as well as the Summary of Facts for that case. The defendant was convicted after trial. His defence that 16.4 grammes of cocaine and 2.49 grammes of methamphetamine hydrochloride were on his person for his own consumption was rejected. As I have done today, that sentencing judge added 3 months to the starting point of 6 years to reflect the aggravating factor the defendant was a recidivist.

The initial suggestion that the drugs from that case were part of the drugs from this case is not credible without further evidence. Therefore, all it shows is that after his arrest for the District Court case, he continued to traffic in drugs and was arrested again. However, the prosecution could possibly have dealt with both cases together in the High Court. The mitigation put forward now is that the defence hope this sentencing court will add the amount of drugs from both cases together and consider what the starting point would have been if they had been dealt with together, notwithstanding the fact the offences were committed three months apart.

Mr So for 2nd defendant submits that if the drugs of both cases had been added up, the starting point would have been 12 year and 3 months if the combined approach was applied. That is only 5 months more than the starting point I have taken for the drugs in this case. Obviously the glaring difference is that the defendant has pleaded guilty in this case but was convicted after trial in the District Court case.

The time difference between arrests is material as well. In my view, three months between arrests is not a particularly short gap of time. Obviously, the totality principle must be considered and after considering all the facts of this case and mitigation I therefore order 4 years and 3 months of this sentence to be served concurrently to the District Court sentence DCCC 738/2017.

Therefore, for this charge, the 1st defendant is sentenced to 7 years and 8 months. The 2nd defendant is sentenced to 8 years and 2 months, 4 years and 3 months of this sentence will be served concurrently with his present sentence and the balance consecutively.