HKSAR v. Hau Ying Chi

HCCC 326/2018

[2020] HKCFI 775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 326 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Ms Hau, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

Under Count 1, you have pleaded guilty to trafficking in 15.90 grammes of cocaine, 0.8 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called, and 3.34 grammes of heroin hydrochloride.

Under Count 2, you have pleaded guilty to possession of 2.52 grammes of ketamine, 5.04 grammes of heroin hydrochloride, 8.7 grammes of ‘Ice’ and 100 tablets containing 0.38 grammes of methadone.

The facts of the case have been read out by the prosecution and you have agreed them, but in essence they are that you were stopped by officers outside of the Yau Luen Apartments at Nos 70A-D Tai Po Road in Sham Shui Po. The drugs which are the subject of Count 1 were found in your handbag. Upon arrest you were frank with the police that they were for selling. That is to your credit. Inside your home address were found the dangerous drugs which are the subject of Count 2. There was also an electronic scale and a bundle of resealable plastic bags as well as a glass bottle for personal consumption of drugs. In interview, you accepted that you were in the process of trafficking when stopped and that the monies recovered were the proceeds of that trafficking.

The street value of all of the drugs was in the region of HK$36,500. That was well beyond your means as you were not employed, had three children to support and lived with your mother and elder brother who has mental health difficulties. As her Honour Judge Woodcock noted on the last occasion, you were living on very limited means in difficult circumstances. I presume that the only way you came to be in possession of such drugs was because someone else was using you to supply the drugs for them, someone who held themselves out to be a friend but was doing you no favours at all. I doubt if you would have profited very much from such an activity as you had your own habit to feed. I have no doubt that this was the overriding reason for the trafficking.

You are now 40 years of age. Ms Hau, if you do not stop abusing drugs, your future will be one of a life spent behind bars. Your children will never get to know their mother. And if you are not careful, they will follow your path of drug abuse. Do you really want that for your children?

You have a significant criminal record which started in 1995 when you were only 15 years old. That was for possession of dangerous drugs, at which time you received a probation order which you subsequently breached. I presume that was because you had been arrested once more for possession of dangerous drugs which was in 1997. You were dealt with for further drugs offending in 2002, 2004, 2006, 2007 and 2012, during which time you also had five matters of failure to answer bail. You were the subject of DATC orders during that time which clearly did not help you.

In 2013, you were dealt with by her Honour Judge Woodcock in the District Court for trafficking in dangerous drugs for the first time and given a sentence of imprisonment of 3 years and 6 months. I have had the benefit of reading the reasons for sentence on that occasion. The judge was as lenient as she was able to be, given the guidelines for sentencing of offenders involving dangerous drugs.

In the normal course of events, your previous offending history would affect the sentence which must be passed upon you for trafficking in dangerous drugs on this occasion. You clearly have a serious drug addiction problem, but from what I have gleaned from Ms Wong, this is a problem which you have sought to address and in the recent past, your offending has slowed. Given what I have been told and read in the circumstances of this case, I cannot see how either you or the public are assisted by this court considering this to be an aggravating feature but I must warn you that if you continue to offend in this manner, that is what will happen on the next occasion.

I have taken into account all that Ms Wong has said on your behalf, including your early indication of plea, your background and your family circumstances and the fact that you have had a significant period of time in custody to date to help you stop abusing drugs. Whether your time in prison will stop future abuse is yet to be seen but your growing maturity might make you realize that unless you stop now, you will have no family and no life. You will die lonely and in prison.

Bearing in mind that my approach should not be strictly numerical but trying as best as I can to find an even-handed approach to the sentencing of this cocktail of drugs, I have considered that if I were to sentence you in accordance with the guidelines for each of the drugs to which you have pleaded guilty to trafficking under Count 1, then under R v Lau Tak Ming [1990] 2 HKLR 370, you would be looking at a starting point of 5 years and 4 months after trial for the 15.9 grammes of cocaine.

Under HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, there would be a starting point of 3 years for the ‘Ice’ because the starting point for up to 10 grammes is 3 to 7 years. For the 3.34 grammes of heroin hydrochloride under R v Lau Tak Ming, you would receive a starting point after trial of 3 years. That would make a starting point of 11 years and 4 months in total and that does not reflect your culpability in this matter. I have therefore considered all that was said in HKSAR v Chan Yuk Leong, CACC 318/2013 and the authorities referred to therein.

Both cocaine and heroin hydrochloride fall to be considered under the sentencing guidelines in Lau Tak Ming. The two drugs combined have a narcotic content of 19.24 grammes, which would attract a starting point of 5 years and 9 months’ imprisonment after trial. The total amount of narcotic under Count 1 is 20.04 grammes. The 0.8 gramme difference is the ‘Ice’ which represents just 3.63 per cent of that total.

20.04 grammes of cocaine would have attracted a starting point for sentence after trial of 5 years 9 months as well, as would 20.04 grammes of heroin hydrochloride. But of course if it had all been ‘Ice’, it would have attracted a starting point of 7 years and 8 months. The relative ratios of the drugs would result in 3 months being deducted from the 5 years and 9 months to take account of the fact that the cocaine and the ‘Ice’ - I think I meant here heroin hydrochloride - represent 96.27 per cent of the total drugs and 3 months being added for the ‘Ice’ which represents just 3.63 per cent of the total drugs. In other words, I actually consider that the 5 years 9 months is appropriate to cover all three types of drugs as a starting point under Count 1.

There is then the issue of the possession of 2.52 grammes of ketamine, 5.04 grammes of heroin hydrochloride, 8.7 grammes of ‘Ice’ and 0.38 grammes of methadone under Count 2. Ms Wong rightly points out that the usual starting point ranges between 12 to 18 months for possession, and I believe the correct starting point in this case is 18 months because of the variety and the amount of drugs recovered.

Under Count 1, a starting point of 5 years 9 months would attract a sentence after discount, after the usual discount, of 3 years and 10 months. Count 2, with a starting point of 18 months, would attract a sentence after the usual discount of 12 months. In this case, however, I consider a small additional discount appropriate for what I have been told and read which, if reflected in both counts, would make the sentence of imprisonment under Count 1 that of 3 years and 7 months, and under Count 2, a sentence of imprisonment of 11 months, and ladies, for your benefit, it is approximately 37 per cent in all. 6 months of the sentence on Count 2 will be served concurrently with the sentence that you will serve on Count 1. You will therefore go to prison for 4 years in all.