Background and the facts
On 28 January 2019, the defendant pleaded not guilty in the Eastern Magistrates’ Courts to two charges of trafficking in a dangerous drug. She was then committed to the Court of First Instance for trial. On 1 March 2019, the solicitors acting for the defendant wrote to the court to confirm the defendant’s not guilty pleas and requested for the case to be listed for trial. However, before the case was so listed, the defendant’s solicitors again wrote to the court on 8 March 2019, stating that the defendant was prepared to plead guilty to both counts. As a result, a plea and sentence hearing was fixed.
On 10 May 2019, the defendant pleaded guilty to both counts before me as indicated and she also admitted the Summary of Facts. Thereafter, she was accordingly convicted.
The facts were briefly these: in the small hours of 3 March 2018, after the defendant had walked out from the Holiday Inn Express Hotel in Kowloon, she was seen walking to and fro along the pavement and paying attention to her mobile phone. Then, the defendant was seen walking to the centre of the road, looking left and right. When the defendant returned to the pavement, she was intercepted by the police.
Upon a body search, it was discovered that the drug particularised in count 1, that is, 13.2 grammes of a crystalline solid containing 13.1 grammes of methamphetamine hydrochloride, was held in the defendant’s hand. Under caution, the defendant said that she was suffering from cervical cancer and had to take ‘Ice’. The retail value of the drug was estimated to be about HK$7,100. This drug is the subject matter of the 1st count.
With the hotel card key found on the defendant, the police gained entry into Room 2302 which was registered under the defendant’s name. As a result of a search, the following items were found on the table of the open kitchen:
-A re‑sealable plastic bag with three re-sealable plastic bags inside, having a total of 30.9 grammes of a solid containing 30.5 grammes of methamphetamine hydrochloride. The estimated street value was about HK$16,600;
-12 re-sealable plastic bags having a total of 12.2 grammes of a solid containing 11 grammes of cocaine. The estimated street value was about HK$12,300 in powder form or HK$15,000 in crack form;
-One re-sealable plastic bag with 0.11 grammes of a mixture containing 0.04 grammes of heroin hydrochloride. The estimated street value was about HK$80;
-An electronic scale;
-10 empty re-sealable plastic bags; and
-A bag containing cash in the sum of HK$14,500.
The ‘Ice’, cocaine and heroin hydrochloride itemised above are the subject matters of the 2nd count. Under caution, the defendant said that the ‘Ice’ was for her own consumption and for pain relief.
Further, amongst other things, a bag containing cash in the sum of HK$91,850 and another bag containing cash in the sum of HK$1,763.20 were found on the bedside table.
On the following day, the defendant was interviewed by way of video-recording during which she told the police, inter alia, that she was unemployed; she consumed ‘Ice’ and “coke” for pain relief as she was suffering from cervical cancer; she consumed 1 gramme of ‘Ice’ per day; the money inside the room was given to her by her boyfriend and was her own savings; she had forgotten what the electronic scale was for; why she held the ‘Ice’ in her hand; and why she had bought the drugs found inside her room.
Defendant’s background and mitigation
The defendant is aged 49 and is separated from her husband some 12 years ago. She was educated up to Form 4 level and was unemployed at the time of arrest. According to Mr Kwan who acts for the defendant, in the past 10 years, the defendant was taken care of by a male, Lim Kwok-fai but Mr Lim passed away in August 2017.
In terms of the defendant’s health condition, it was reported that in 2016, she was found to have uterine fibroid which was removed in September 2018. The defendant had complaints of psychiatric symptoms and medical treatment for her psychiatric condition started in November 2018. The defendant also has the problem of chronic hip joint pain and neck necrosis. In April 2019, she was found to have tuberculosis.
Mr Kwan handed up to the court a letter written by the defendant herself and one written by her son. In gist, the defendant expressed that she turned to drugs as she was hard hit by the sudden death of her long-term boyfriend and her ill health. She indicated her remorse and begged for a lenient sentence. The defendant’s son said that the defendant was a filial daughter and a caring mother and also that, as far as he knew, the defendant did not supply drugs to others.
Prior to the commission of these offences, the defendant had been convicted of a total of five theft offences; four possession of a dangerous drug offences; one possession of prohibited weapons; and one trafficking in a dangerous drug offence. In respect of the trafficking in a dangerous drug conviction, she was sentenced to a term of 5 years on 18 April 2013 and was last discharged on 21 November 2015.
In the course of mitigation and in support of the defendant’s claim that she had a significant amount of the drugs for self-consumption, Mr Kwan provided to the court a copy of the reasons for sentence in respect of the (her) trafficking in a dangerous drug case. Briefly, the defendant was found to have concealed on her body 27.15 grammes of a crystalline solid which contained 25.15 grammes of ‘Ice’. Although it was put forth in mitigation that the defendant bought the entire lot of ‘Ice’ for her own consumption, it would seem that the sentencing judge in that case did not accept the claim because only a reduction of 4 months was given to take account of that factor.
I should state here that, irrespective of whether the claim for self-consumption was or was not accepted on that occasion, it is for me to assess, based on what was put before me in this case and the facts admitted, whether it was or it might be that the drugs involved here was largely for the defendant’s own consumption, including for the alleged pain relief.
In this connection, I had told Mr Kwan that I was not inclined to accept that claim after Mr Kwan had invited the court’s attention to the following matters: that the defendant was a long-term drug addict; that she had already told the police at the scene and during the video-recorded interview that the drugs were used by her for feeding her drug habit and for pain relief; and that after her arrest, her urine test result was amphetamine and cocaine positive.
As a result, Mr Kwan informed the court that the defendant would give evidence to substantiate her claim which she eventually did. In response, Mr Siu for the prosecution then called the exhibits officer, Police Constable 15426, to testify in the Newton Hearing and had adduced, with no objection from Mr Kwan, an expert report prepared by Dr Lau Fei-lung in relation to matters including the effect of taking the drugs and the usual daily dosage.
The Newton Hearing
When giving evidence, the defendant said that she had been a drug addict for 30 years and she had been suffering from uterus tumour since mid-2016. According to the defendant, she had spent HK$18,000 to HK$19,000 to get the drugs in question, buying the ‘Ice’ in one go, but not the cocaine.
In respect of the drug held in her hand, the defendant claimed that she was asked by a friend to take 7 grammes of ‘Ice’ for him and she would also consume the drug for pain relief. However, she was stopped by the police before she could reach her friend. While the defendant had told the police during the interview that she took 1 gramme of ‘Ice’ per day, she said under cross-examination that she gave an incorrect answer at that time as she was not in a good state. She claimed that she actually took 2 to 3 grammes of ‘Ice’ per day. The defendant further said that she used ‘Ice’ bottle for consumption of ‘Ice’ and there was an ‘Ice’ bottle in the refrigerator which bottle had two holes on it and she had used white plastic to cover the holes.
In respect of the drugs inside the room, when testifying in chief, the defendant said that most was for her own consumption; that is, 21 “strikes” or 21 grammes of the ‘Ice’. She also said that if two of her customers or her friends came, they would collectively take 7 grammes of the ‘Ice’. As for the different bags containing the ‘Ice’, the defendant said that she did not deliberately separate them. Regarding the cocaine and the heroin, the defendant claimed that those were for her pain relief.
However, under cross-examination, the defendant said that at the time of arrest, she had stopped taking heroin. For cocaine, she claimed that she would consume 1 gramme per day. When asked why there were 12 packets of cocaine, the defendant replied that it was the result of dividing them many times.
In respect of the cash of HK$91,850, the defendant said that it was left to her by her late boyfriend, Mr Lim, two days before he passed away in August 2017. According to the defendant, Mr Lim, a decoration worker, had looked after her in the past 10 years. Mr Lim’s daily wage was about $1,500 and he worked 20 days per month. His monthly salary was therefore about HK$30,000. The defendant said, at that time, she was living in Mr Lim’s public housing unit with him and she was given about HK$20,000 as household expenses each month. Then, before his death, Mr Lim gave some HK$170,000 to the defendant in one go. When asked why she said during the interview that she was unable to say how much money her boyfriend had given to her, the defendant replied that she gave that answer as she was feeling unwell.
After Mr Lim’s death, the defendant told the court that she was allowed to stay in the housing unit for one more month until September 2017. She later stayed in the premises of her friends, moving from one place to another and carrying the cash with her. In February 2018, the defendant said she started renting the hotel room as she would like to treat herself better, given that she was feeling more and more uncomfortable and she thought she was going to die. The monthly rental of the room was HK$22,000 and she had provided a sum of HK$44,000 as deposit for the room.
When asked why she did not deposit the money with the bank, the defendant said it was because she feared that her son might not be able to get the money. When put to her that at the time of arrest, her only source of income was trafficking in drugs, the defendant replied in the affirmative.
The evidence of the exhibits officer was very short. He said that he had searched the refrigerator and found no ‘Ice’ bottle, ‘Ice’-inhaling device or a bottle with two holes inside. However, he said that he could not remember if there was any plastic bottle with water covering with a blue cap.
Sentencing considerations
The tariffs for trafficking in ‘Ice’ were laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For a quantity of between 10 and 70 grammes of ‘Ice’, a starting point of 7 to 11 years’ imprisonment is called for.
Regarding cocaine, the tariffs are the same as those for heroin. See AG v Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370. For trafficking between 10 and 50 grammes of cocaine, a term of 5 to 8 years’ imprisonment is called for.
In this case, given that the drugs were found on the same day and the facts in the two counts were closely linked together, it is appropriate to add up the drugs to arrive at an aggregate total before deciding on an appropriate overall starting point. See HKSAR v Wong To, CACC 508/2000 (7 August 2001, unreported).
After the addition, the drugs involved were a total of 43.6 grammes of ‘Ice’ and 11 grammes of cocaine. As regards the heroin, given the very small amount involved, I am prepared to ignore it.
Having considered the facts of this case and the amount of the drugs involved, I take the view that using the combined approach, see HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the appropriate starting point should be one of 9 years and 7 months and this is the term I adopt for both counts 1 and 2. In adopting this starting point, I have employed the absurdity test, the ratio test and the conversion test for cross-checking. See HKSAR v Chan Yuk Leong CACC 318/2013 (8 April 2014, unreported). The result under the absurdity test is one of 10 years; that under the ratio test is one of 9 years and 7 months; and that under the conversion test is one of 9½ years if converted to cocaine and one of 9 years and 7 months if converted to ‘Ice’.
Claim for self-consumption
For the following reasons, I completely reject the claim made by the defendant that she would keep a substantial amount of the drugs in counts 1 and 2 for her own consumption.
Firstly, for the ‘Ice’ in count 1, the defendant was then on the street in the small hours of the day and she was holding the drug in her hand, wrapped inside a wad of tissue paper. Clearly, she was going to deliver the drug to others or was waiting for the drug to be collected by others. Her saying that she was taking the drug to her friend’s place for consumption by both of them is simply untrue. If she really intended to consume part of the drug, she could do so when she was at her hotel room, which was a safer place for the consumption. Further, if the defendant’s friend had asked her to supply 7 grammes of ‘Ice’, it would have been logical for her to have weighed and separately packaged that amount of ‘Ice’ for easy handing over to her friend rather than having the total amount of 13.1 grammes of ‘Ice’ wrapped inside one plastic bag. In any event, the claim that she was taking the ‘Ice’, which was worth about HK$7,000, for sharing with friends in the circumstances mentioned by her is beyond comprehension and is not at all credible.
Secondly, in respect of the drugs found inside her room, I note that not only were they separately packed into smaller packets, there were also the presence of packaging paraphernalia like the electronic scale and empty re-sealable plastic bags. If, as claimed, the cocaine was for the defendant’s own consumption, there was simply no reason for her to so sub-divide the drugs and to have them stored in 12 different bags, especially when she said that such packaging was the result of division many times, not that such was the original form in which she had obtained the cocaine. Similarly, if the bulk of the ‘Ice’ was for the defendant’s own consumption, she could store the drug in one big bag and not to have them separately packaged.
Therefore, while I accept that the defendant was a drug addict who would consume some ‘Ice’ and cocaine which was evident from her urine test result, I completely reject her saying that she would keep any significant amount of the drugs for her own use. In particular, the claim that she would use 2 to 3 grammes of ‘Ice’ per day is not only inconsistent with what she told the police earlier, such an amount plus 1 gramme of cocaine are, according to Dr Lau, beyond the tolerance of most heavy chronic users, if not beyond the tolerability of any users.
Now, even if it might be the case that the defendant would keep a small amount of the drugs for her own use, one cannot lose sight of the fact that simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment. In the present case, there is also the clear element of latent risk which would further enhance the sentence for simple possession. Therefore, even assuming that the defendant might retain a small portion of the drugs for self-consumption, this factor would not affect the sentence in the present case in any material way.
In short, I do not consider that the defendant should be given any sentence reduction in respect of her claim of having a significant amount of the drugs for self-use which claim I completely reject as explained above.
Sentencing in this case
The defendant pleaded guilty after the committal but before the case was listed for trial. In accordance with HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, I would give her a reduction of 25% for her plea. Other than the defendant’s plea there is nothing in this case which would warrant any further discount in sentence. I should also mention that although the defendant has got a number of previous drug-related convictions, I do not consider it necessary to enhance her sentence in this case firstly because there was just one trafficking record and secondly, because there was a gap of more than two years between her last discharge and the commission of the present offences.
However, as the defendant failed in the Newton Hearing in respect of her claim for self-consumption, I consider it appropriate that I should further reduce the 25% reduction to one of 20%. The conduct of the Newton hearing took about one day. It therefore reduced the saving of court time which is one of the reasons for granting the one-third reduction.
Nine years and 7 months, which is a total of 115 months reduced by 20% is a term of 92 months and this is the sentence I impose on the defendant for each of counts 1 and 2. As I started off by adding the amounts of the drugs in the two counts together and by adopting an overall starting point, I order that both terms for counts 1 and 2 are to be served wholly concurrently after taking into account the totality principle.