HKSAR v. Leung Wing Yan Hilda

DCCC 817/2018

[2019] HKDC 595

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 817 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon her own guilty plea of the first charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and the second charge of possession of apparatus fit and intended for the inhalation of dangerous drugs, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance.

FACTS

2.At about 8:56 pm on 13 July 2018, the defendant was intercepted by the police when she was entering Room 3720, Ming Wik House, Kin Ming Estate, Tseung Kwan O, Kowloon (the “Flat”).

3.House search of the Flat found the following items:-

(i) two re-sealable transparent plastic bags containing suspected heroin (“E2” and “E3”);

(ii) a re-sealable transparent plastic bag containing suspected methamphetamine (“E4”);

(iii) an inhaling device containing 96 millilitres of a liquid which upon drying was found to contain 0.02 grammes of a solid containing cocaine;

(iv) an inhaling device containing 44 millilitres of a liquid which upon drying was found to contain 0.04 grammes of a solid containing methamphetamine;

(v) an inhaling device containing 23 millilitres of a liquid which upon drying was found to contain 0.03 grammes of a solid containing methamphetamine;

(vi) a box of aluminium foil;

(vii) a roll of aluminium foil;

(viii) a lighter;

(ix) three used plastic straws;

(x) one plastic straw with rolled paper;

(xi) two electronic scales;

(xii) 300 small size re-sealable transparent plastic bags in three piles; and

(xiii) 38 medium size re-sealable transparent plastic bags in one pile.

4.Upon arrest and under caution for the offence of trafficking in a dangerous drug, the defendant said the No. 4 and cold stuff were for her self-consumption and selling.  Under caution for the offence of possession of apparatus fit and intended for the inhalation of dangerous drugs, the defendant said the ICE bottles were used to consume the No. 4 and cold stuff.

5.E2 was subsequently found to contain 27.8 grammes of a mixture containing 14 grammes of heroin hydrochloride, and E3 was subsequently found to contain 27.4 grammes of a mixture containing 15.2 grammes of heroin hydrochloride.  E4 was subsequently found to contain 1.30 grammes of a solid which did not contain any substances controlled under the Dangerous Drugs Ordinance.

6.In two subsequent cautioned interviews, the defendant said inter alia that:-

(i) “No. 4” meant heroin;

(ii) “cold stuff” meant methamphetamine;

(iii) the ICE bottles seized were used to inhale methamphetamine;

(iv) she was the registered tenant of the Flat and she lived there alone since 2005;

(v) she was unemployed and relied on CSSA at $4,800/month for a living;

(vi) E2 and E3 were heroin she bought at $25,000;

(vii) E4 was methamphetamine bought at $450;

(viii) the transparent re-sealable plastic bags were bought for repacking the methamphetamine;

(ix) the two electronic scales were used to weigh drugs;

(x) the three straws were used to inhale drugs;

(xi) the aluminium foil was used to heat heroin for inhalation;

(xii) she had been addicted to heroin for around 10 years; and

(xiii) she would repack the drugs and then sell them to others.

7.The urine test report on the defendant showed positive result for amphetamine and opiate.

8.As of July 2018, the estimated retail price of heroin was $867 per gramme.  The estimated retail price of 55.2 grammes of a mixture containing 29.2 grammes of heroin hydrochloride was $47,858.40.

PREVIOUS RECORD AND ANTECEDENT

9.Prior to the convictions resulted from the present case, the defendant had 5 previous convictions derived from 4 court cases.  Out of those 5 previous convictions, there were 2 convictions of possession of dangerous drugs and one conviction of possession of pipe/equipment fit and intended for smoking/injecting/inhaling dangerous drugs sentenced to DATC in July 2011 and September 2013 respectively.

10.The defendant was born in November 1978.  She is now 40 years old.  She is single, received education up to Form 4 level.  She has been unemployed since 2001.

MITIGATION

11.The defendant’s counsel Mr YC Yeung submitted written mitigations to this court.  In short, Mr Yeung drew my attention to the sentencing tariff laid down in Lau Tak Ming[1].  Mr Yeung also submitted that half or more of the drug seized was intended for the defendant own consumption.  A number of documents, including 2 mitigation letters both written by the defendant, were submitted to this court for consideration.  The prosecution had no submissions on the mitigations advanced by Mr Yeung.

SENTENCE

12.According to Lau Tak Ming, trafficking 10 to 50 grammes of heroin hydrochloride would attract a sentence of between 5 and 8 years.  In the present case, I adopt a starting point of 6½ years’ imprisonment for the first charge of trafficking in 29.2 grammes of heroin hydrochloride.  For the second charge, I adopt a starting point of 4½ months’ imprisonment.

13.Regarding the defendant’s claim of self-consumption which relates to the sentencing on the first charge, I have considered the Court of Appeal’s decision in HKSAR v Liu Ming Sze[2]. In the present case, whilst I accept that certain percentage of discount should be given to the defendant for her claim of self-consumption, I am of the view that the latent risk was high – there were 3 inhaling devices, one box of aluminium foil, one roll of aluminium foil, 300 small size re-sealable transparent plastic bags and 38 medium size re-sealable transparent plastic bags were found in the Flat.  Also taking into account that possession of the heroin carries a sentence in any event, I am minded to reduce the starting point to 69 months’ imprisonment by virtue of the defendant’s claim of self-consumption.  The reduction of 9 months represents a 11.54% discount from the starting point of 6½ years’ imprisonment.

14.I further give one-third discount to the defendant for her timely indication of guilty plea.  The sentence on the first charge is therefore reduced to 46 months.  In or about September, October, November, December 2017, February, March and June 2018, the defendant made donations in the total sum of HK$550 to World Vision Hong Kong.  Because of those donations, I reduce her sentence on the first charge by 2 weeks.  There being no further valid mitigating factors justifying further reduction in sentence, I therefore impose a sentence of 45 months and 2 weeks’ imprisonment on the defendant for the first charge.

15.As for the second charge, after giving one-third discount for the defendant’s guilty plea, the sentence is reduced to 3 months’ imprisonment.  In light of her aforesaid donations, I further reduce her sentence to 2 months and 3 weeks’ imprisonment.

16.I order that the sentences on both charges to run concurrently.  The total sentence is therefore 45 months and 2 weeks’ imprisonment.