HKSAR v. De Vera Cloyd

DCCC 100/2019

[2019] HKDC 1174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 100 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 4.67 grammes of a crystalline solid containing 3.16 grammes of methamphetamine hydrochloride (‘ice’), contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at 11:12 p.m. on 8 November last year the defendant was intercepted at the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal.  During a search of the defendant’s trousers a re-sealable plastic bag containing the ice fell onto the ground.  The estimated street value of the ice is $2,802. 

3.A tissue wrapped re-sealable plastic bag containing ten red pills which did not contain any controlled substance also fell onto the ground.

4.The defendant was also found in possession of a ferry ticket for departure at 11:45 p.m. to Macau.

Mitigation

5.In passing sentence, I have carefully considered the oral and written submissions of Mr Polson, including that from the outset the defendant pleaded guilty to possession of the ice. 

Guidelines

6.In HKSAR v Tam Yi Chun the Court of Appeal recast the sentencing guidelines for trafficking in ice[2]. 

7.Mr Polson initially submitted that if the court accepted that the ice was for the defendant’s own use the court should not simply ‘rubber stamp’ the guidelines but instead should sentence the defendant in the same way as if he was charged with possession of drugs in accordance with the approach laid down in HKSAR v Mok Cho Tik[3]. 

8.The court having drawn to Mr Polson’s attention various authorities in which the Court of Appeal have repeatedly stated that the fact all the drugs were for self-consumption does not reduce the culpability of trafficking to the level of simple possession, Mr Polson abandoned this submission[4]. 

9.I am satisfied the correct approach is to follow the guidelines and adjust the starting point if the court accepts that all or part of the ice was for own consumption.  

10.The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.  I am satisfied the proper starting point after trial for trafficking in 3.16 grammes of ice is 4 years and 3 months’ imprisonment. 

Own use

11.The defendant says that all the ice was for his own consumption. 

12.Mr Polson informs the court that the defendant has been a long term recreational user of ice and would consume about 1 gramme of ice each time; the defendant went to Macau for two to three days to gamble and took the ice with him to consume while he was there; the defendant went to Macau on his own and did not intend to sell or share any of the ice with anybody; that at the time of arrest the defendant was a construction site worker earning $25,000 per month and therefore could easily afford to buy the ice.

13.In support of the submission that the defendant is a long term recreational user of ice Mr Polson relies on the defendant’s criminal record and the positive result of a urine test taken two days after arrest on admission to Lai Chi Kok Reception Centre.

14.The criminal record supports that in 2007 and 2014 the defendant was an abuser of drugs.  The result of the urine test is positive for amphetamine and supports that at the time of arrest the defendant was an abuser of ice.      

15.The prosecution accepts that some of the ice may have been for the defendant’s own use but cannot quantify how much. 

16.Although the defendant’s claimed dosage of ice of about 1 gramme is greater than the average abuse dosage for regular users as particularised in HKSAR v Tam Yi Chun, taking into account the quantity of ice is not large; there was only one packet of ice; the defendant has abused drugs since at least 2007 as shown in his criminal record and that at the time of his arrest he was abusing ice, I am prepared to accept that all the ice may have been for the defendant’s own use without the need for the defendant to give evidence in support .  

17.In HKSAR v Chow Kam Lung the Court of Appeal held that where the drugs were all for one’s own consumption this constituted a strong mitigating factor which should be taken into account[5].

18.Mr Polson referring to HKSAR v Tsang Chung Keung[6] and the cases cited therein, in particular Secretary for Justice v Chan Chun Fai[7], submits a 25% reduction is appropriate.I am satisfied the starting point should be reduced by 12 months to 3 years and 3 months’ imprisonment, which is just less than 25%.

Aggravating feature

19.Exporting ice adds an international element to the offence and is an aggravating feature of sentence.  Mr Polson submits that in his experience the enhancement for the international element would be no more than 2 months’ imprisonment.  No authority is submitted in support of this proposition.

20.In HKSAR v Chung Ping Kun the Court of Appeal held that an enhancement of not less than 6 months was appropriate for trafficking in up to 250 grammes[8].

21.In HKSAR v Choi Chun Wo the Court of Appeal stated that at the lower end of the scale a sentencing court must ensure that the level of enhancement is just and proportionate[9]. The court held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

22.Albeit the quantity of ice is less than in HKSAR v Choi Chun Wo both quantities are at the lower end of the scale. I am satisfied that the starting point should also be enhanced by 3 months to 3 years and 6 months’ imprisonment.

Discount for pleading guilty

23.The defendant first appeared in the District Court on 21 February 2019 when the case was adjourned to 2 April 2019 for Legal Aid to instruct counsel and to give the defendant legal advice.  On 2 April 2019 the defendant indicating his plea of not guilty to trafficking but guilty to possession the case was set down for trial to commence yesterday with two days reserved. 

24.The new sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[10]. 

25.Mr Polson informs the court that prior to the defendant indicating his plea of not guilty he explained to the defendant that by taking drugs out of Hong Kong he was trafficking.  The defendant responded by saying he was not a pusher and insisted on pleading not guilty.

26.On 15 May 2019 Mr Polson wrote to the Department of Justice to ask whether a plea to simple possession was acceptable.  The Department of Justice rejected the offer to plead guilty to simple possession. 

27.Mr Polson further informs the court that in a conference with the defendant last week he showed the defendant an extract from Archbold stating that taking drugs out of Hong Kong was trafficking.  The defendant then said he would plead guilty to the charge. 

28.Mr Polson immediately informed Mr Parry of the change of plea.  The solicitors for the defendant wrote to the court on 22 August informing the court that the defendant will plead guilty to the charge. 

29.The defendant having only indicated his plea of guilty 7 days prior to trial he is not entitled to a full one third discount.  This is accepted by Mr Polson.

30.In HKSAR v Ngo Van Nam the Court of Appeal stated that subject to the overriding discretion of the judge in sentencing, a defendant who gives the Court or the prosecution an indication of a plea of guilty after plea day and before the first day of trial is to be afforded a discount between 25% and 20%.  In determining the appropriate discount the court further stated that the judge will have regard to the time at which the indication to plead guilty was given and all other relevant circumstances[11].

31.I am satisfied a discount of 10 months’ imprisonment is appropriate which is almost 25% from the starting point of 3 years and 6 months’ imprisonment.  This reduces the sentence to 2 years and 8 months’ imprisonment. 

Assistance to authorities

32.Mr Polson submits that the defendant should be given additional discount for his assistance to the police in attempting to arrest the person who supplied the drugs to him[12].

33.In his letter to the Department of Justice dated 15 May 2019 Mr Polson also said that the defendant wished to provide useful information to the authorities to enable further arrests to be made. 

34.A non-prejudicial statement was taken on 22 May and 24 May 2019 in which the defendant provided the name, telephone number and address of the person he said supplied him with the ice[13].

35.Mr Parry informs the court that Customs & Excise conducted an operation on the 2, 4, 5 and 6 August but were unable to locate the person mentioned by the defendant. 

36.The defendant having giving the information at the end of May Mr Polson criticises the Customs & Excise for not taking action earlier.  I have no hesitation in rejecting this criticism.  The information supplied by the defendant was not given until over six months after his arrest.  It is therefore not surprising Customs & Excise could not locate the person mentioned by the defendant as his supplier. 

37.Mr Polson referring the court to HKSAR v Lo Sze Tung Stephanie[14] and HKSAR v Godson Ugochukwu Okoro[15] submits that the defendant has nevertheless made a genuine attempt to assist the authorities and should therefore be given additional discount. 

38.No arrests having been made and the information supplied not proving helpful, I am satisfied no additional discount is warranted[16].

39.The defendant is convicted and sentenced to 2 years and 8 months’ imprisonment.