HKSAR v. Chan Suet Ngan

HCCC 9/2019

[2019] HKCFI 2417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 9 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 trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The defendant’s plea was entered before Eastern Magistracy. She agreed the Summary of Facts and was committed to the Court of First Instance for sentence on 7 January 2019.

The defendant pleaded guilty to unlawfully trafficking in 114 grammes of a crystalline solid containing 103 grammes of methamphetamine hydrochloride and 166 grammes of a mixture containing 120 grammes of heroin hydrochloride on 16 March 2018, inside a patient’s bathroom of the North District Hospital, Sheung Shui, New Territories, Hong Kong.

On 16 March, at about 2.45 pm, an immigration officer noticed the defendant while she passed through the channel of the arrival clearance hall at the border at Man Kam To. The defendant was intercepted by another customs officer at the customs arrival hall. Her bag was checked with nothing illegal found inside. However, an ion test conducted was positive.

There was a body search and a customs officer found white‑coloured substance at defendant’s vagina but the defendant refused to answer any questions. A sample was taken from her underpants, another ion test conducted which was positive again. Therefore the defendant was handed over to the police and escorted to the North District Hospital for examination.

A doctor there requested a vagina examination and an x-ray to see if the defendant had concealed any dangerous drugs inside her body. Her rights were explained to her. She nevertheless refused to undergo the said examinations. She was warned that she would be charged with obstructing a police officer in the due execution of his duty if she continued to refuse, but she declined any medical examination. She also ignored the warnings of the obvious dangers of dangerous drugs in her body by the doctor.

Later that afternoon, the defendant claimed to be pregnant and was advised to provide a urine sample for a pregnancy test but she said she was unable to urinate.

Finally, the next morning, at about just before 8 am, the defendant told a police officer that she wanted to go to the toilet and would expel the dangerous drugs hidden in her body. She was escorted to the toilet and eventually took out a total of nine condoms containing suspected dangerous drugs from her vagina.

The defendant was arrested for trafficking in dangerous drugs but remained silent under caution. A government chemist determined that there were three plastic bags in three separate condoms. That contained a total of 114 grammes of a crystalline solid containing 103 grammes of methamphetamine hydrochloride. It was also determined that there were six plastic bags in six separate condoms containing a total of 166 grammes of a mixture containing 120 grammes of heroin hydrochloride.

In March 2018, the estimated street value of the ‘Ice’ was about $61,446 and the heroin was $121,180, therefore a total of $182,626.

There was a video-recorded interview later conducted where the defendant refused to answer most questions but did say that she knew that the condoms expelled from her body contained heroin and ‘Ice’. She said she did not know where the drugs came from, why they were inside her and how they got inside her. She did not know if she was trafficking in drugs from China to Hong Kong to give to somebody else. When asked if the drugs were for sale or for her own consumption, she said she did not know. In the Summary of Facts that she agreed, she admitted that she was knowingly in possession of all of the dangerous drugs seized for the purposes of trafficking.

The defendant has 13 previous convictions from 1993 when she was 15 years old to her last conviction in 2007. Four of those convictions were for possession of dangerous drugs in 2003 and 2004. She has been sent to drug addiction treatment centre on four separate occasions. This is her first trafficking-in-dangerous-drugs conviction.

Defendant is now 41 years old, was a housewife and separated from her husband in 2015. She has two children aged 3 and 5 who both live with foster parents as arranged by the Social Welfare Department. She has two siblings and her parents are in their sixties.

The defendant said she started to take heroin when she was about 13 years old and gave that up in 2010 but by then was consuming ‘Ice’. She says she has been consuming ‘Ice’ until her arrest. There were urine tests conducted when she was remanded in custody after her arrest which tested positive for amphetamines.

Trafficking in dangerous drugs is a serious offence and on conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.

The authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370 sets out the Court of Appeal guidelines for trafficking heroin. The starting point for trafficking between 50 to 200 grammes of heroin is between 8 to 12 years’ imprisonment. Therefore the mathematical starting point for trafficking 120 grammes of heroin alone would be 9 years and 10 months.

The sentencing guidelines for ‘Ice’ are found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 70 and 300 grammes of ‘Ice’ is between 11 and 15 years’ imprisonment. Therefore the mathematical starting point for trafficking in 103 grammes of methamphetamine hydrochloride or ‘Ice’ alone would be 11 years and 7 months.

However, we have here two types of drugs, a cocktail of drugs. I have been referred to several authorities of assistance by prosecution counsel. In the case of HKSAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. This approach is often preferred and produces the more realistic sentence. In the combined approach, the court looks at the overall quantity of drugs rather than individual parcels and types.

I have also referred myself to several other authorities dealing with cocktail of drugs including HKSAR v Leung Chun Pong [2009] 6 HKC 672 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443. In the case of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for any other drug. The court there also discussed three means of cross-checking whether the sentence was manifestly excessive. These are the absurdity test, the conversion test and the ratio test.

Ms Lai for the defendant has taken this quantity of ‘Ice’ and heroin and in mitigation calculated a starting point for the cocktail of drugs using the absurdity test, the ratio test and the conversion test or combined approach. If I consider the conversion test and convert all the drugs into ‘Ice’, then the appropriate starting point would be 12 years and 6 months. I agree with Ms Lai that this is the most favourable starting point for the defendant in the circumstances.

It is well-established that a sentencing starting point for the offence of trafficking in the absence of any good reasons to the contrary is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach. The mere fact that the defendant was only a drug mule or courier is not a good reason for departing from that mathematical approach. I have referred myself to HKSAR v Kilima Abubakar Abbas [2018] HKCA 602.

In addition, this offence is aggravated by the presence of an international element in that the heroin and ‘Ice’ was imported by the defendant into Hong Kong from mainland China. According to the broad guidelines laid down by the Court of Appeal in HKSAR v Chung Ping Kun [2014] 6 HKC 106, there they have said that for the presence of the international element, an offence for trafficking in under 250 grammes of narcotics means the starting point should be enhanced by up to 6 months. The above guideline is not a straightjacket but I consider the enhancement for the international element in the present case should be 6 months and add it to the 12-year-and-6-month starting point I have found appropriate.

Defendant, please stand up. I have considered mitigation, the defendant’s background and the facts of this case. I have found a starting point of 12 years and 6 months appropriate and enhanced it by 6 months for the aggravating factor of importing the drugs. Therefore the starting point becomes 13 years. The defendant pleaded guilty at the earliest opportunity and is entitled to the full discount of one-third. This would reduce the starting point to 8 years and 8 months’ imprisonment.

I have also taken into account other submissions made on behalf of the defendant in mitigation and find it appropriate to reduce that sentence by a further 4 months. Therefore the defendant is sentenced for this offence to 8 years and 4 months’ imprisonment. Do you understand that sentence?

ACCUSED: Yes.