HKSAR v. Chan Sau Mui

HCCC 136/2019

[2019] HKCFI 3050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 136 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 in this matter was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded not guilty and was on 12 November 2019 acquitted after trial of that charge, but convicted of the alternative offence of possession of dangerous drugs.

The defendant was remanded in custody pending the preparation of a Drug Addiction Treatment Centre Report as is required by section 54A of the Dangerous Drugs Ordinance, Cap 134. That report has now been provided.

Fact

The background to this matter is as follows. It was the prosecution’s case at trial that in the early morning, at around 5 am of 17 July 2018, a team of police officers led by Acting Woman Sergeant Choi (PW1) were on patrol in Mongkok. When they arrived at the road crossing at No.443 Shanghai Street, the Acting Woman Sergeant Choi spotted the defendant standing outside a Wellcome Supermarket at the opposite side of the road. The defendant was at the time standing on the first lane of the roadway looking around nervously. The party of officers were across the road at an angle opposite the defendant. Her attention aroused by the defendant’s behaviour, Acting Woman Sergeant Choi thus went over to intercept the defendant and brought her to the pavement outside the Wellcome Supermarket, which is the location particularised in the charge at No.438 Shanghai Street.

A search was then conducted on the defendant and in her left front trousers’ pocket, the police found one resealable plastic bag of ‘Ice’, two resealable plastic bags of heroin and one small pellet of heroin in plastic wrappings, each wrapped in a piece of tissue paper.

The officer then arrested the defendant for trafficking in dangerous drugs and cautioned her. Under caution, the defendant told the officer that “the ‘Ice’ and ‘Sze Chai’ were all for her own consumption.”

The defendant later maintained the same explanation in her video recorded interview taken the same day at the police station. In gist, she said under caution that she had purchased the drugs from an acquaintance called “Ming Chai”, whom she had bumped into at a park on Tai Nam Street shortly before her arrest at around 4-something am. Ming Chai offered to sell her the drugs ‘Ice’ and heroin, and there were about 14 grammes of each of the drugs. She bought the whole lot in bulk as she wanted to take them home and save them for her own consumption slowly. She said she had been a drug addict consuming ‘Ice’ and heroin for 30-odd years. She paid Ming Chai $20,000 for the drugs, which was all her own savings. She said she kept the large sum of money with her on her person, which was what she had always done. After purchasing the drugs from Ming Chai, she walked to Mongkok intending to go to the 24-hour Wellcome supermarket to buy something. She was intercepted by the police there.

As regards her drug habit, she described in her video recorded interview how she would consume the ‘Ice’ and heroin once or twice a day, and that although she was not too certain about the exact quantity of drugs she would take each time, the lot of drugs found in her possession would last her several months if she was to consume them “slowly and frugally”.

Upon analysis by the government chemist, the drugs seized from the defendant are confirmed to be 13.5 grammes of a solid containing 13.1 grammes of methamphetamine hydrochloride (‘Ice’), and a total of 16.06 grammes of a mixture containing 10.13 grammes of heroin hydrochloride. The estimated street value of the drugs at around the time of the offence is $7,304 for the ‘Ice’ and $14,165 for the heroin, totalling $21,465 for the whole lot of drugs seized from the defendant.

According to Dr Mak, who is an expert in toxicology and substances of abuse in Hong Kong, whilst appreciating that the consumption dosage varies strictly among drug users, the quantity of each of the drugs seized in this case, namely the ‘Ice’ and heroin, would be good enough for consumption for about 20 days for one user.

At trial, most of the prosecution case was agreed. And the prosecution was only required to call two witnesses to testify, the Acting Woman Sergeant Choi (PW1), who made the arrest and a Detective Police Constable Leung(PW2), who participated in the video recorded interview with the defendant and went to her residence to conduct a house search subsequently. Officer Leung confirmed in his evidence that at the time of the house search, the defendant’s 11-year-old daughter was there inside the premises, as well as a man, who the defence claimed to be a Mr Luk with whom the defendant got married subsequently during her remand for this case. The officer also confirmed that there was no drug trafficking paraphernalia found inside the premises, such as weighing scales, plastic bags or account books. Nor was there any equipment for consuming drugs.

The defendant chose not to give evidence in the trial. She relied upon her account given in the video recorded interview, which was admitted into evidence by way of Admitted Facts. She relied also on the Admitted Facts that she had been receiving CSSA of around $10,000 per month before her arrest, that she was married to a man called Mr Luk, and that she was tested positive for amphetamine and opiate on a urine test conducted two days after her arrest during her remand. A medical report dated 29 January 2019 was also produced by admission setting out the defendant’s substance abuse and addiction history, and stating that she had been taking heroin since she was aged 14 and ‘Ice’ since her 20s. In gist, the defence case was that the defendant was a long-term addict in both ‘Ice’ and heroin, and she had all the drugs found on her for her own consumption. She was able to fund her drug habit given her CSSA income, and that in any event she was not on her own and had indeed a man behind to support her.

The defendant’s claim of possession of the drugs for self-consumption was consistent with the verdict returned by the jury. And it is on such a basis that the court will proceed to sentence her.

Defendant’s background

According to the Drug Addiction Treatment Centre report, the defendant is no longer a drug dependent and she is considered not suitable for detention in Drug Addiction Treatment Centre. The report, however, does inform the court more about the defendant’s background.

This morning, the defendant produced two letters; one from her, the other from a prison pastor, Miss Poon, providing further information as to the defendant’s personal circumstances and the reason why she committed the offence. In particular, why she carried such a large sum of money on her person and why she purchased such a large quantity of dangerous drugs.

The defendant is now aged 52 years and 10 months. She was the fourth among seven siblings and her parents had both passed away. She was educated to Form 4 and dropped out of school before completing her Form 4 education. She had worked as a waitress in various restaurants but stopped working since 2006, when she started relying upon CSSA for a living.

The defendant had married twice before the offence and she had a son and a daughter born to the two previous marriages. She lives apart from her now grown-up son, and her now 12-year-old daughter lives with her and her present husband, Mr Luk.

The defendant had four previous convictions, three for possession of dangerous drugs, all of which were in the 1990s. According to the DATC report, she started taking heroin in 1986 out of unhappiness because of the failure in her first marriage. She initially took the drug intermittently, but was eventually addicted to it in 1988 whereupon she started taking the drug every day. She was arrested for possession of dangerous drugs in 1989 and was convicted and fined for that offence. She was arrested the second time in early 1993 for possession of dangerous drugs again, for which offence she was put on probation for 18 months. She failed to complete the probation order and was sentenced to DATC for breaching the probation order. She completed the treatment in April 1995 and was subject to a one-year statutory supervision period. Upon expiry of her supervision period in April 1996, she soon relapsed into taking heroin and added ‘Ice’ to her drug list, inhaling each daily on top of heroin. Soon after she was arrested for drug offences the third time and was sentenced to a six-month suspended sentence and fined $3,000 for possession of dangerous drugs and antibiotics in July 1996.

In the years that ensued, the defendant did not give up her vice habit of abusing dangerous drugs. She was pregnant with her second ex-husband in 2006 and she quit her job as a waitress, starting to receive CSSA. She gave birth to her daughter in 2007, but was sadly deserted by her ex-husband soon after. Assuming the role of a single mother taking care of her children, she kept her bad habit of abusing heroin and ‘Ice’ every day. She later met her present husband, Mr Luk, and started cohabitating with him until her arrest for the present offence.

She said she had tried to rid of her drug habit by attending a period of drug treatment in Zhuhai, mainland China twice, in March and May 2018, but both attempts were in vain. According to the DATC report, it was because of family issues.

As would be expected, subsequent to her arrest she has been detained in custody, and by the date of her assessment under the Drug Addiction Treatment Centre provisions, she was no longer regarded as suitable for treatment in a Drug Addiction Treatment Centre. The report indicates that by reason of the fact that she had been in custody for a period of almost 16 months since her arrest in July 2018, she was no longer regarded as a drug-addicted person. The consequence of that is that option is no longer available in terms of how she should now be dealt with.

It was said on her behalf this morning that the arrest this time may have saved the defendant. That it is a milestone in her life and she should be given the opportunity to turn over a new leaf.

Sentence

Offences involving drugs are serious and our community has taken a severe view on such offences. There are adverse impact and dire consequences of drug offences on both the individual and society at large. Such a serious view is reflected in the maximum sentence that can be imposed for possession of dangerous drugs, which is one of 7 years’ imprisonment and $1 million fine on conviction on indictment.

The proper approach to sentencing possession of dangerous drug offences is well-established and is summarised in HKSAR v Lee Chun Man in CACC 360/2014 and more recently in HKSAR v Wong Wai Wah CACC 181/2017. The law is clear that on a charge of simple possession the judge is obliged to adopt a three-stage approach to the assessment of sentence as set out by the Court of Appeal in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.

The three-step approach can be found at paragraph 14 of Lee Chun Man and paragraph 7 of Wong Wai Wah:

“Step 1: The judge should normally determine a starting point of between one year to 18 months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offenders. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

As to step 1, it is pertinent to note paragraph 8 of Wong Wai Wah where Zervos JA made reference to the comments of Stock JA (as he then was) in HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267B-D:

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

Approaching the matter as I must from the point of those observations and principles, in my opinion as to step 1, the appropriate starting point for sentence in all the circumstances of this case given the quantity of ‘Ice’ and heroin involved, and that the defendant is a repeat offender, should be one of 18 months’ imprisonment. This is indeed the starting point as suggested by Mr Whitehouse on behalf of the defendant.

As to step 2, as Zervos JA said in paragraph 34 of Wong Wai Wah:

“...it is worthwhile to bear in mind the observation by McWalters JA in Lee Chun Man at paragraph 17...”

Which states:

“It is notorious that drug abusers may resort to selling drugs in order to fund their addiction or, in a social setting, share their drugs with others.”

As explained by McWalters JA at paragraphs 15 to 20 of Lee Chun Man and reiterated by Zervos JA at paragraph 14 of Wong Wai Wah, the starting point for consideration of this issue must be to (i) ask whether the circumstantial evidence allows of an inference that there was a real risk of dissemination of the drugs, and if the answer is yes, (ii) then ask the next question of by how much should the initial starting point be enhanced. The range of enhancement suggested by the cases is from six months for a “low degree risk” to 18 months or more for a “very high degree of risk”. The width of this range lends emphasis to the discretionary nature of the sentencing judge’s task and the point made by Stock JA in Mok Cho Tik that “the degree of risk is not a matter of mathematics upon which [a tariff can be provided]”.

Pausing here, it is noted that in Mok Cho Tik the Court of Appeal adopted a starting point of 18 months on the applicant for simple possession of 15.274 grammes of ‘Ice’, which was enhanced by 12 months to reflect the latent risk factor.

I am satisfied in the circumstances of this case that there is a real risk of dissemination of the drugs and that such a risk is of “medium” degree. I can properly infer that from the following matters:

a. Large quantity of drugs found and the fact that there were two types of dangerous drugs involved. These drugs were packaged in different ways.

Pausing here, it is noted that if convicted of trafficking in dangerous drugs in those quantities, involving two different types of drugs, ‘Ice’ and heroin, it would have warranted a sentence of over seven years. But I am, of course, conscious of the fact that the defendant is now convicted of possession.

b. The defendant is a person of very limited means. Her income is entirely derived from social welfare payment. She claimed in her declaration for the application of social welfare, CSSA, that she had no income or no job. At the time of the arrest, those CSSA payments were about $10,000 per month, and although it was her case that she had her present husband, Mr Luk, to support her, we did not have much information as to his financial means, bearing in mind that they also have to support the defendant’s younger daughter’s living and schooling. In this regard, I do note from the DATC report that Mr Luk used to be a private car driver previously and has since early 2019, also been a recipient of CSSA. The drugs in the defendant’s possession worth over $20,000.

c. The circumstances of her arrest. The defendant was arrested at 5 am in the morning on a street in Mongkok. She said she had purchased the dangerous drugs shortly before her arrest at around 4 am at Tai Nam Street. Her reported address as stated in the Drug Addiction Treatment Centre report, as well as in her cautioned statement is a public housing estate in Kowloon City, Kai Ching Estate, which is a considerable distance away from the location of her arrest.

d. The defendant was in possession of a large amount of money at the time.

e. The defendant is a drug addict in ‘Ice’ and heroin, which is not disputed by the prosecution and is independently confirmed by her medical report, the DATC report, as well as the urine test conducted two days after her arrest.

f. Defendant’s previous convictions for possession of dangerous drugs. I do note that there was no criminal record for trafficking in dangerous drugs. That said, she did breach the probation order before. That gives some insight into her lack of discipline and her disregard for court orders and for the law. That accords also with the rehabilitation officer who compiled the DATC report that the defendant is a person of weak willpower. Indeed, she relapsed to her drug habit soon after the supervision period in 1996.

g. There are no packaging paraphernalia or account books found in her premises. Neither was there any equipment for consumption. It must be borne in mind that the defendant said under caution that she was to take the drugs home for consumption slowly.

h. Whilst the defendant said in the video recorded interview that the drugs would have lasted her half a year if consumed slowly and frugally, according to Dr Mak, the daily consumption expert, each of the drugs would be good enough for about 20 days for one user. And I note in this regard that the defendant was not certain about the exact amount she consumed each time.

Taking into account all the above circumstances, I consider that an enhancement of sentence of 12 months is justified for the latent risk involved. That would bring the starting point for sentence from 18 months to 30 months.

Step 3: Discount for mitigating factors. Whilst the court is sympathetic to the defendant’s background and especially her marital failure, which seems to be the genesis of her resort to drugs, this background apart, there is no real mitigating factors except her acceptance and early indication of a plea to simple possession, which is consistent with her account to the police and the account that she had maintained throughout the trial.

The defendant offered to plead guilty to simple possession during the committal stage, but that was not accepted by the prosecution in early April 2019. As shown by the return day record on 23 April 2019, whilst she was committed to the Court of First Instance for trial on the trafficking charge, the defendant did elect to plead guilty to possession. In such circumstances, taking into account the guiding principles in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, it is right and just that she be entitled to the full one-third discount, which is the discount I would give in exercise of my discretion.

There are no other circumstances or matters which would allow me to give the defendant any further discount. In the circumstances, the sentence which I impose on the defendant would be one of 20 months’ imprisonment. This would be the sentence that I impose.