HKSAR v. Chiu Hoi Yan

HCCC 140/2019

[2019] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 140 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, Chiu Hoi-yan, was charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of facts

On the day in question the defendant was seen walking towards a police officer outside Tung Kin House in Tai Hang Tung Estate. She was carrying a pink and white bag. Upon seeing the police officer, the defendant sped up with her head down. The police officer intercepted the defendant and summonsed another officer to render assistance.

Upon search, the police found inside the bag carried by the defendant the following:

(1) four plastic bags containing 54.5 grammes of a crystalline solid containing 53.9 grammes of methamphetamine hydrochloride; and

(2) one plastic bag and eight plastic bags containing 13.6 grammes of a crystalline solid containing 13.5 grammes of methamphetamine hydrochloride.

(3) Inside a black plastic bag, there is one plastic bag containing two other items. One was three plastic bags containing 3.47 grammes of a solid containing 2.79 grammes of ketamine, and 20 plastic bags containing 3.91 grammes of a solid containing 2.64 grammes of cocaine.

(4) There were also three keys inside this bag.

So the policeman arrested the defendant for trafficking in a dangerous drug. That is the first count.

And under caution at the scene, the defendant said that the drugs seized were for her own consumption. And defendant voluntarily led the police officers to her flat which was situated at the said Tung Kin House. A house search was conducted with the following items seized:

On the audio system next to the door

(1) They were one plastic tray with 17.8 grammes of a crystalline solid containing 17.4 grammes of methamphetamine hydrochloride.

On the bed

(2) First of all, six plastic bags containing 81.9 grammes of a crystalline solid containing 81.4 grammes of methamphetamine hydrochloride.

(3) There was one plastic bag which was not examined for whatever reason and 46 plastic bags containing 9.03 grammes of a solid containing 5.97 grammes of cocaine.

On the vanity

(4) One plastic bag containing 179 grammes of a crystalline solid containing 178 grammes of methamphetamine hydrochloride.

(5) There is a plastic bag containing 48.2 grammes of a crystalline solid containing 47.5 grammes of methamphetamine hydrochloride.

(6) And one other plastic bag with eight plastic bags containing 13.6 grammes of a crystalline solid containing 13.5 grammes of methamphetamine hydrochloride.

Next to the vanity

(7) 19 millimetres of a liquid containing traces of methamphetamine.

(8) and also one pink ‘Ice’ bottle with a glass tube and a pink straw containing 19 millilitre of liquid.

The defendant was arrested for trafficking in dangerous drugs, that is count 2. Under caution the defendant said the dangerous drugs seized inside the flat were also for her own consumption.

The defendant was also arrested for an offence of “possession of equipment fit and intended for smoking of dangerous drug” in relation to the pink ‘Ice’ bottle seized. Under caution, she admitted that it was used by her for smoking drugs.

There were other items seized during the house search, including the following:

(1) cash HK$4,070;

(2) a pink notebook containing records which are likely transaction records of dangerous drugs;

(3) packing equipments include a sealing machine, 625 unused re-sealable transparent plastic bags and two electronic scales.

The seized items were sent for analysis with the following findings:

For count 1

(1) a total of 68.1 grammes of a crystalline solid containing 67.4 grammes of methamphetamine hydrochloride.

(2) 3.47 grammes of a solid containing 2.79 grammes of ketamine; and

(3) 3.91 grammes of a solid containing 2.64 grammes of cocaine.

For count 2

(1) 340.5 grammes of a crystalline solid containing 337.8 grammes of methamphetamine hydrochloride; and

(2) 9.03 grammes of a solid containing 5.97 grammes of cocaine.

The total value of the dangerous drugs seized in this case was about HK$251,610.

The defendant admitted she knew she was unlawfully trafficking in the dangerous drugs seized in this case at the time of the offences.

Background and Mitigation

The defendant is 45 years of age. She is not a person with a clear record. Apart from convictions of common assault, an assault with intent to resist or prevent lawful apprehension and theft, the defendant has several dangerous drugs-related offences. They include possession of dangerous drugs and equipment fit for taking drugs in 2010, trafficking in dangerous drug, possession of dangerous drug and equipment fit for taking dangerous drug in 2014. The defendant receive education up to Form 3 level. It was submitted that she suffered from depression and had been taking ‘Ice’ since she was 20-year-old. She is single and receive CSSA around $4,400 a month before arrested.

Ms Vivien Chan mitigating on behalf of the defendant informed this court that the defendant mix with bad elements after leaving school when she left home and started abusing drugs. She committed the present offences because of her drug addiction. She had not been in contact with her parents since she left home, as she was too ashamed to see them though she is her parents’ only child. Ms Chan told me that the defendant had reflected deeply since her incarceration this time and does not wish to spend her whole life in prison. She is determined to start anew and ask for leniency.

Although the defendant claimed that the drugs seized were for her own consumption under caution, the defendant does not wish to ask the court to consider such a claim. In other words, the defendant is not claiming that a substantial amount of the drugs seized were for her own consumption; a little bit maybe, but not substantial. So the defendant also wanted this court to know that she has registered as a donor of organs.

Ms Chan submitted written calculation of the three tests as countercheck for the amount of dangerous drugs involved in this case. There is the absurdity test, conversion test and the ratio test. Shortly stated, according to Ms Chan’s calculation, if all the dangerous drugs were ‘Ice’ the starting point would be 16.9 years. If all were cocaine, 15.4 years. If all were ketamine, 10.2 years. With the conversion test and the ratio test both would yield a starting point of 16.8 years.

Sentence

Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be sentenced for life and to a fine of $5,000,000. In the circumstances of our present case, both offences were committed on the same day and the facts were closely linked. The dangerous drugs, cocaine and ‘Ice’, which is the methamphetamine hydrochloride in count 1, were obviously connected with the cocaine and ‘Ice’ in count 2. So the proper approach is to have regard to the total amount of dangerous drugs involved in both count 1 and count 2 to arrive at an overall starting point.

For trafficking more than one kind of drugs there are two sentencing approach open to the sentencing judge. One is the individual approach, the other is the combined approach. In the circumstances of this case, I will adopt the combined approach, using ‘Ice’ as the basics and adjust the starting point after taking into account the not insignificant quantity of cocaine.

As the ketamine involved in count 1 was relatively small, 2.79 grammes, I will not take the ketamine into consideration. For the trafficking of ‘Ice’, the guideline set down by the Court of Appeal in the case of Tam Yi Chun [2014] 3 HKLRD 691 is applicable. The ‘Ice’ involve here amounts to 405.2 grammes which falls under the band of 300 to 600 grammes of ‘Ice’, with a starting point between 15 to 20 years. A starting point of 16½ years is appropriate.

The quantity of cocaine involve is 8.61 grammes, which falls into the category of up to 10 grammes, with a starting point of two to five years, this case Pedro Nel Rojas [1994] 2 HKCLR 69 adopting guidelines in R v Lau Tak Ming [1990] HKLR 370. A starting point of 4½ years for a first offender would be appropriate.

In my view, if all the drugs were ‘Ice’, a total of 413.81 grammes would have attracted a starting point of 17 years. If all were cocaine, the starting point would have been 15 years. So I will enhance the 16½ years by 3 months to arrive at an enhanced starting point of 16 years and 9 months for both dangerous drugs, taking into account that more than one drug was involved.

The defendant does not have a clear record. She already has a previous conviction of trafficking in dangerous drug in 2014 and two other of possession of dangerous drugs and equipment for taking dangerous drug. So I am of the view that further enhancement of 3 months is appropriate here. So with the enhancement, the appropriate starting point of the trial would be one of 17 years. Although the way I approach is slightly different from what was submitted by counsel, I think, at the end of the day, it is about the same, because counsel arrived at 16.8 years on a purely arithmetical calculation, but adding on to it the fact that two counts were involved, more than one drug was involved and the defendant’s previous conviction, so adding four more months is still appropriate.

16.8 is purely mathematical calculation. But leaving the calculation aside, the court has to take into account the fact that there were two counts involved, count 1 and count 2, more than one kind of drug was involved, in fact, three, and also the defendant’s previous drug-related convictions. So adopting the calculation of counsel, basically the court is only adding four more months. So whichever way, I am of the view that 17 years starting point is appropriate.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. Now, I appreciate the defendant’s wish to become an organ donor. However, it remains a question whether organs which have been subjected to years of drug abuse could be used should anything happen to the defendant. In any event, this wish of the defendant is not something I can take into account to reduce her sentence. So there are no other grounds to further reduce the sentence, except the one-third I have mentioned.

So for count 1, the defendant is sentenced to 11 years 4 months’ imprisonment. Count 2, same, 11 years and 4 months’ imprisonment. Both sentences to run concurrently, making a total of 11 years and 4 months’ imprisonment.