HKSAR v. Peng Wenfen

HCCC 6/2019

[2019] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 6 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Defendant, you have admitted that on 3 May 2018 in Hong Kong, you unlawfully trafficked in dangerous drugs, namely 23.91 grammes of a crystalline solid containing 23.21 grammes of methamphetamine hydrochloride and 2.43 grammes of a mixture containing 1.59 grammes of heroin hydrochloride. This plea was entered before Eastern Magistracy on 7 January 2019 and you were committed to the court of first instance for sentence.

The Facts

On 3 May 2018, the police obtained a search warrant for premises; Room B, 4th Floor, No 17 Sau Fu Street, Yuen Long, New Territories, and knocked on the premises door at about 7.45 pm that night. The defendant answered the door and the police gained entry. The police found seven other people in the premises. The premises are about 150 square feet. It was one bedroomed and full of clutter. One of those seven people was the defendant’s husband, the rest claimed to be friends. Investigation showed that the defendant and her husband occupied this premises.

The defendant was searched by a WPC and she found two transparent resealable bags containing suspected ‘Ice’ weighing 25 grammes, one transparent resealable plastic bag containing heroin hydrochloride and another transparent resealable plastic bag containing a very small amount of ‘Ice’. These bags were found in her shorts pocket along with the keys of the premises. All of the seven people in the premises were also searched with nothing suspicious found on their persons.

In the bedroom, the police found a box containing a roll of tin foil, two small electronic scales, four lighters, three pairs of scissors, two metal trays, a silver spoon and a large pile of small transparent resealable plastic bags. These items are normally required for the inhalation of drugs, as well as often used to pack drugs, pack for the purposes of trafficking in drugs.

The defendant was arrested for trafficking in dangerous drugs and under caution she said the drugs were for her own consumption. The defendant appeared tired and did not improve after a break so the police took her to hospital where she was admitted for one day. A urine test conducted at the hospital revealed traces of heroin and ‘Ice’. Later, at the police station, the police arranged a Putonghua interpreter to assist with their investigations. They did conduct a video-recorded interview in which the defendant refused to speak or answer any questions.

Mitigation

The defendant is not a woman with a clear record. She has two previous convictions. In 2013, she was fined for gambling in a gambling establishment and in June 2018, she was sentenced to a drug addiction treatment centre order for the possession of dangerous drugs. This second conviction occurred after the arrest for this offence. It means she was on bail at the time when she was arrested for this offence. This could be an aggravating factor.

Her best mitigation is her plea of guilty at the earliest opportunity. I have been told that she is 45 years old and was born in Mainland China. She was lucky enough to obtain a one-way permit in 2016 but started to take dangerous drugs after that and committed the second offence. She was unemployed at the time of her arrest and receiving government financial assistance. She told the police she was a drug addict and consumed ‘Ice’ as well as heroin. Urine tests taken at the hospital on the day of her arrest confirms that she had recently consumed both drugs. I have also been told she is married with a son. Her husband is of ill health. He requires kidney dialysis every week.

Counsel for the defendant, Mr Bok, has said all he can say on the defendant’s behalf. I have taken into account his mitigation and his succinct submissions in writing. I have heard that the defendant settled in Hong Kong in 2016 and began to take heroin in the same year. She claims to have been influenced by peers. The year after in 2017, she began to consume ‘Ice’ as well. The defence submit that some of the drugs found on her were for her own consumption. The prosecution does not challenge this mitigation.

Trafficking Guidelines

Trafficking in a dangerous drug is a serious offence. On conviction on indictment a person is liable to a fine of HK$5 million and to imprisonment for life. The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, the starting point for trafficking in 23.21 grammes of ‘Ice’ in this case, mathematically speaking, is 7 years and 11 months.

The sentencing guidelines for heroin hydrochloride is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370, and the starting point for trafficking up to 10 grammes of heroin is 2 to 5 years’ imprisonment. Therefore, the starting point for trafficking in 1.59 grammes of heroin in this case, mathematically speaking, is 2 years and 6 months.

A cocktail of drugs

There are two types of drugs for unlawful trafficking in this case, a cocktail of drugs. There are two approaches to sentencing in this situation, namely, the individual approach and the combined approach. It would be sensible to take the 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 two drugs. Here, it would be ‘Ice’. Often the combined approached produces the more realistic sentence, HKSAR v Leung Chun Pong [2009] 6 HKC 672 and HKSAR v Wong Kin Kau [2010] 4 HKC 443.

The methodology of this combined approach is to first calculate the applicable sentence for the most serious drug, ‘Ice’, and then make an upward adjustment to take into account the significant quantity of the other drug. I have been referred to several authorities by Mr Bok, defence counsel, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, and HKSAR v Chan Yuk Leong, CACC 318/2013. In that last authority, the Honourable Yuen JA enunciated three tests for cross-checking whether the overall starting point for a cocktail of drugs is manifestly excessive, the absurdity test, the conversion test and a ratio test.

Mr Bok has calculated that the quantity of heroin here is only 6.41 per cent of the total quantity of dangerous drugs. I will take into account the ‘Ice’ here attracts a starting point of 7 years and 11 months, whereas if I treat the heroin as ‘Ice’ and the total amount of drugs here consisted of only ‘Ice’, the starting point would be 8 years’ imprisonment, 1 month more. Therefore, this is an appropriate starting point for the drugs here.

Discount on self-consumption

On the issue of self-consumption, the defence claim that a portion of the ‘Ice’ was for her own use. The question for this court is whether part of the drugs were for her own use as she claims or whether all of it was to be trafficked. The fact her urine tests at the hospital and upon remand tested positive for both ‘Ice’ and heroin, as well as the fact she was obviously on bail at the time of her arrest for a possession of drugs offence, supports her mitigation that she was a habitual drug user. Mr Bok urges me to believe this is the case and that it is plausible that a proportion of the drugs were for her own consumption as claimed.

The Court of Appeal decision of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 sets out the principles for a sentencing court when considering the issue of self-consumption. I have considered, in particular, paragraph 34 of that authority. I have also considered HKSAR v Choi Chun Wo, CACC 273/2017. The Court of Appeal has there made it very clear that the defendant is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by her.

A significant proportion was said in Wong Suet Hau to be a proportion that would make a difference to her sentence. The sentencing court must be satisfied and what must be proved to the judge’s satisfaction is that all or a significant proportion of the drugs were for self-consumption and, if true, it may well make a difference to sentence. When considering whether this mitigation is true, the normal rules for determining the factual basis for sentence apply and if accepted, it is unnecessary for the judge to specify the amount for self-consumption except in the broadest of terms.

The sentencing court should consider whether the claim is credible and then proven to the court’s satisfaction. Often a Newton hearing will be required to do this. Bald assertions or mere assertions will not suffice as a rule unless not challenged. Therefore, the court should be presented with credible and reliable information that is material to this mitigation in order to cancel out the necessity of a Newton hearing. The material information here would be her urine tests and her sentence to a drug addiction treatment centre one month after her arrest for a possession of dangerous drugs offence.

I have considered paragraph 29 of the Choi Chun Wo authority and I quote:

“When a less than significant proportion of the unquantifiable drug is accepted as being for the defendant’s own consumption, then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact, as explained in Liu Ming Sze, paragraphs 28 and 29.”

That is a reference to HKSAR v Liu Ming Sze [2017] 1 HKLRD 69. If this mitigation is accepted, then a discount of a range between 10 to 25 per cent has been suggested in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, specifically at paragraphs 19 and 20. I have considered the factors relied on by the defendant to put forward a credible claim and I find it enough to support a claim of self-consumption.

I am satisfied that a proportion of the drugs was intended to be consumed by the defendant, but not a significant proportion. There will, nonetheless, be a discount to reflect her mitigation. She claims some will be for self-consumption. The discount will not be significant because simple possession of a dangerous drug in itself is an offence which would call for a term of imprisonment. There is always a latent risk that some of the drugs here would have been sold for a profit if the opportunity arose, rather than kept for self-consumption. This latent risk is present. There is always the risk that the opportunity will arise in the company of others to share or sell one’s own drugs. She herself, the defendant herself, has said she was influenced by peers to partake in drugs.

Defendant, please stand up.

Conclusion

I have considered mitigation, the facts of the case and the defendant’s background, including the fact that she has not been convicted of trafficking in dangerous drugs before. I will take into account the cocktail of drugs, the combined approach and take a starting point of 8 years. I accept the mitigation that the defendant would consume some of the drugs herself and reduce that starting point by 15 months to 6 years and 9 months. That is a discount of about 16 per cent. That sentence is to be further reduced by a third to reflect the defendant’s plea of guilty at the earliest opportunity. Defendant, you are sentenced to 4 years and 6 months’ imprisonment.