HKSAR v. Shek Hing Ying

HCCC 150/2018

[2019] HKCFI 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 150 OF 2018

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

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COURT:

Ms Shek, the defendant, was charged with two counts of trafficking in a dangerous drug. Charge 1 concerns 4.59 grammes of a crystalline solid containing 4.54 grammes of methamphetamine hydrochloride. Charge 2 concerns 436 grammes of a solid and a crystalline solid containing 6.36 grammes of methamphetamine.

The defendant pleaded not guilty but after the voir dire procedure and the admission of her verbal admissions, post‑recorded statement and three records of interview, she pleaded guilty to possession of the drugs of Charge 1 and trafficking of the drugs of Charge 2. Prosecution accepted that plea.

The allegation which the prosecution made against the defendant is fairly straightforward and was expanded upon by witnesses’ evidence during the voir dire.

On 18 May 2017, a team of police officers, having obtained a search warrant for premises on the 2nd Floor of 964 Canton Road, Mongkok, Kowloon, were waiting near the premises. The search warrant was obtained on the basis that the police had their suspicions that there was drug-trafficking activity or dangerous drugs in those premises.

At about 3.40 pm, DPC16395 saw the defendant and her boyfriend approach the gate of the premises and after she opened the door, he intercepted her. They had just entered the flat and were about to open the door of Unit A, premises rented by the defendant in December 2016, when the police revealed their identity.

DPC16395 showed the defendant and her boyfriend his warrant card and the search warrant before he searched her handbag. He found a packet of ‘Ice’ in her bag, the drugs of Charge 1. She admitted under caution that the ‘Ice’ was for her own consumption.

DPC12909 was tasked to search Unit A and he found drugs of Charge 2 amongst other items. Those other items included an ‘Ice’ bottle or pipe and 440 tablets confirmed to be Part I poison as well as a bag of crystalline solid containing ephedrine, also a Part I poison. These other items were not subject of any charge.

The defendant did, however, admit under caution that the tablets were for her own consumption and the ‘Ice’ was fake. She also admitted that the ‘Ice’ bottle or pipe was used for smoking ‘Ice’. The defendant’s boyfriend made no admission and denied all knowledge of all items found. He was ultimately not charged.

The defendant signed and confirmed the admissions at the scene and then again in a post-recorded statement taken a couple of hours later. Subsequently, there were a total of three video-recorded interviews that were challenged as well as five POL153 forms. Defendant challenged the admissions on the basis that she never made them and that she was induced into an agreement with the police to admit possession of the drugs of Charge 1 and the pills in return for her boyfriend obtaining bail.

I heard evidence from police officers and the defendant during the voir dire and found against the defendant. I found the prosecution had proved beyond reasonable doubt that if she made the verbal admission, it was made voluntarily and the statement was recorded voluntarily not long after. The admissibility was determined by the credibility of those who gave evidence. The defendant has, after that ruling, decided to plead guilty and the prosecution accepted her plea of possession to Charge 1 and her plea to trafficking the drugs of Charge 2.

Mitigation

The defendant is now 53 years old and was born in China. She came to Hong Kong in 1987. She received an education up to secondary level and was a waitress at the time of her arrest. She has four children but does not live with them and at the time of arrest was living alone in that unit on the 2nd Floor of 946 Canton Road.

She is not a woman with a clear record. She has five convictions obtained over three court appearances. In 2013, she was convicted of possession of dangerous drugs and possession of equipment fit and intended for consuming drugs in the magistracy and fined. Her last conviction was in July 2016 when she was sentenced to a term of imprisonment for possession of dangerous drugs and trafficking in dangerous drugs in the High Court.

Mr Yip has said all he can say on behalf of the defendant in mitigation. It is said that the defendant consumed about 1 gramme of ‘Ice’ per day and the drugs of Charge 1 would last her four to five days. She had a sufficient income and therefore the means to pay for her drug habit.

The defendant was said to have bought the drugs of Charge 2 some time ago for her own consumption. She thought a substance with a lower purity of ‘Ice’ would be better for her but was wrong. She did not dispose of the drugs but kept it at home for others to use if they wished. She had no intention to sell it but only to share it.

Charge 1

There is no tariff for possession of drugs but probably the best starting point in this regard is HKSAR v Mok 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’. Stock JA, as he then was, observed at page 267:

“The starting point for mere possession of a quantity of dangerous drug 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.”

Stock JA 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 of 2006, the Court of Appeal was faced with sentencing an addict in possession of 6.82 grammes of ‘Ice’. 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 of dangerous drugs, there is a risk of those drugs being disseminated beyond the abuser. There is this latent risk. This enhancement is not merely for a significant quantity of drugs. It is also not to be employed as a form of disguise to sentence the defendant for trafficking in the drug, subject of that charge.

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

“In our opinion, there can 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 offender’s. 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 [2000] 1 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 the 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’ imprisonment.

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, all the circumstances in that case and the personal circumstances of the defendant.

Here, the defendant was carrying those drugs outside of her home. The quantity of ‘Ice’ is significant but she says it only lasts her four to five days. However, I will not ignore the fact that her close boyfriend, Mr Lau, was with her and also a drug abuser. There is a risk she would share with him. She also says she consumes ‘Ice’ many times a day, often so she can play mah-jong for hours on end. He also plays mah-jong and may share in her ‘Ice’ for the same purpose.

The last step is to adjust the total sentence to take into account mitigating factors such as a guilty plea. This defendant did not indicate at the committal stage that she would admit possession of the drugs as an alternative to the charge. If she had, she would now benefit from a full one-third discount. She did not give this indication until after the voir dire. Therefore, she should only be entitled to a discount of 20 per cent or less as the trial has commenced. This is according to the Court of Appeal in HKSAR v Ngo Van Nam, CACC 418 of 2014.

For that amount of ‘Ice’, I find a 14-month term of imprisonment an appropriate starting point and I will enhance that by 6 months to take into account the latent risk. Therefore, the starting point for Charge 1 is 20 months.

Charge 2

The trafficking guidelines for trafficking ‘Ice’ comes from HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the Court of Appeal have said that the starting point for trafficking up to 10 grammes is between 3 to 7 years’ imprisonment. Here, mathematically speaking, trafficking in 6.36 grammes of methamphetamine will attract a starting point of 5 years and 7 months.

I did adjourn the sentencing to obtain a further report and information from the government chemist. I wanted to establish what the ‘Ice’ was mixed with or cut with. I wanted to establish what the substance was to be sure that it was not noxious or toxic to users. If the substance was harmful to those ingesting or inhaling it, then in my view, this would be an aggravating factor.

A further GCC report found the ‘Ice’ was mixed with ephedrine which is a Part I poison. The government chemist was unable to comment on the pharmacological effect of ephedrine, but the prosecution properly obtained an expert report from a Dr Lau Fei-lung, dated 4 March 2019. Dr Lau describes the origin and form of ephedrine as well as its modern-day usage. It can be a medication or, less commonly, a stimulant drug of abuse. It has a similar chemical structure to amphetamine which makes it a highly sought-after chemical precursor in the illegal synthesis of ‘Ice’.

Here it was mixed with ‘Ice’. As a substance of abuse, ephedrine by itself has a less addictive potential than ‘Ice’. Dr Lau explains the effects on a person who orally ingests it as well as via the nasal cavity. He does also describe the effects of orally taking ‘Ice’ or smoking it. He does say that when ‘Ice’ is mixed with ephedrine:

“The combined mixture would have increased toxicity with the same degree of euphoria and hence more dangerous.”

However, in spite of that last opinion, I do take into account that in this case, where there was a mixture of methamphetamine and ephedrine, the mixture of ephedrine was far higher. There was 436 grammes of ephedrine mixed with 6.36 grammes of ‘Ice’ found in a total of three bags. I do not find enough in the reports to increase the starting point for this quantity of ‘Ice’ because of what it was mixed with. There is no additional aggravating factor. These is no definitive opinion that this mixture, as it was, is more dangerous than the ‘Ice’ alone.

Defendant, please stand up. Taking into account the reports, the opinion of Dr Lau, mitigation put forward as well as the quantity of ‘Ice’, I will take a starting point of 5 years and 7 months for Charge 2. A plea of guilty after the voir dire, the defendant has changed the plea after the voir dire, therefore will not be eligible for a one-third discount according to HKSAR v Ngo Van Nam. The Court of Appeal said at paragraph 215 that:

“The discount to be afforded to a defendant who pleads guilty after arraignment but during the trial itself would usually be less than the 20 per cent afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. Often, it will follow the holding of a voir dire.”

The court has said that this is subject to the overriding discretion of the judge in sentencing.

Mr Yip has submitted the defendant should be eligible for at least a 20 per cent discount. He has asked me to consider the fact that jury was not yet empanelled. I will take into account how the police witnesses were cross-examined although it is, in my overriding discretion, the defence submit and request a 20 per cent discount.

I have taken into account what the Court of Appeal said in Ngo Van Nam, mitigation put forward as well as the voir dire proceedings. I will exercise my discretion and find a 20 per cent discount applicable to the defendant’s plea. For Charge 1, I have taken a starting point of 20 months and after a discount of 20 per cent is applied, the defendant is sentenced to 15 months’ imprisonment. I am sorry. That should be 16 months, 16 months. Sorry, a sentence of 16 months.

For Charge 2, a starting point of 5 years and 7 months and after a discount of 20 per cent is applied and the sentence rounded upwards, the defendant is sentenced to 4 years and 6 months.

I have considered the totality principle and the circumstances of the charge and order the two charges to be served concurrently. Therefore, the defendant is sentenced to a total of 4 years and 6 months. Do you understand that sentence?

ACCUSED: Yes.