HKSAR v. Yeung Wing Sing

HCCC 177/2019

[2020] HKCFI 2725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 177 OF 2019

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

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COURT: The accused, Yeung Wing-sing, the 1st accused at trial, faced two charges, namely, Count 1 which was against the 1st accused and the 2nd accused for possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134; and Count 2 which was against the 1st accused only for trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the same ordinance.

The 1st accused pleaded not guilty to both charges and was on 31 July 2020 found guilty after trial of Count 1 by a unanimous verdict of the jury. As for Count 2, he was found not guilty of trafficking but was found guilty unanimously of the alternative offence of possession of a dangerous drug. By those verdicts, he was therefore convicted of two offences of possession of dangerous drugs.

As is required by section 54A of the Dangerous Drugs Ordinance, a drug addiction treatment centre report was called for and the 1st accused was remanded in custody pending preparation of that report which has now been provided.

A. The Fact

The factual background to the matter is this. In gist, it was the prosecution’s case in the trial that in the early morning at around 3.30 am of 19 January 2018, two police officers in uniform were patrolling near Mody Road, Tsim Sha Tsui, where they saw the 1st accused’s private motor car UG 2333 parked outside a shopping mall, K11, on Mody Road.

The officers saw the 1st accused and his then girlfriend (the co-accused, 2nd accused who was acquitted after trial) sitting inside the car - the 1st accused on the driver’s seat, the 2nd accused on the front passenger seat. The police officers approached the car and intercepted them for enquiry. Other police officers were summoned to the scene to offer assistance. A search was later conducted of the car in the presence of the accused. As a result,

(a)  The police discovered the following three items hidden inside a portable charger found in the armrest compartment of the car:

(i)  one plastic bag containing 2.36 grammes of a crystalline solid containing 2.34 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’;

(ii)  a plastic bag containing 2.95 grammes of a solid containing N-isopropylbenzylamine, which is not a controlled substance; and

(iii)  one tinfoil pack containing 10 tablets containing phenazepam, commonly known as ‘Five Chai’, of total weight 2 grammes.

The first and third items of drugs formed the subject matter of Count 1;

(b)  in the boot of the car, the police found two plastic bags wrapped in a sanitary napkin, containing a total of 54.9 grammes of a crystalline solid containing 53.8 grammes of ‘Ice’, approximately 2 ounces of ‘Ice’ of 1 ounce each packet. These two packets formed the subject matter of Count 2.

Upon discovery of these dangerous drugs, both accused were arrested and cautioned at the scene. Under caution, the 1st accused admitted that the drugs found in the front of the car were his but denied any knowledge of the drugs found in the boot of his car.

The estimated street value of the whole lot of drugs at the time of the offence is around $32,000 for the ‘Ice’. For the smaller packet of ‘Ice’ found in the portable charger, the subject of Count 1, the estimated street value was $1,318.

According to Dr Tse, an expert on the daily consumption of ‘Ice’ for drug users, whose expert statement was admitted in evidence at trial, the total quantity of ‘Ice’ seized in this case, namely 56.14 grammes, could last 112 to 560 days for an average user and 56 to 112 days for a heavy user.

At trial, the 1st accused offered a different version from the account he had given the police under caution. He asserted that the drugs found in the charger inside the armrest compartment had nothing to do with him. He said he only made the “admission” at the scene under caution because he was scared and he wanted to exonerate his girlfriend, the 2nd accused, thinking at the time that the charger could have been hers. On the other hand, he admitted possession of the drugs found in the boot for his own consumption only, denying that they were for the purpose of trafficking.

He testified that he was, at the time of the offence, running a red-wine trading business in San Po Kong earning around $30,000 to $40,000 a month, with an average income, he said, of $18,000 a month. He also ran a foot massage business in Mongkok. He said he thus had the means to finance his drug habit. He had been addicted to ‘Ice’ since 2010 and starting from 2016 onwards, he kept consuming drugs, he said, non-stop until the time of his arrest. He said he was a heavy user, consuming 1 gramme per day, and that he would mainly use tinfoil as a method of consumption, which explained why there was no paraphernalia (such as ‘Ice’ bottle “hookah”) for consuming ‘Ice’ found at his home during house search.

As to the drugs seized from the boot, he described in his evidence how, after he had run out of drugs having last consumed drugs before he left work on 18 January 2018, he went about sourcing for drugs from Mongkok to Jordan then to Tsim Sha Tsui on that night, and how he finally managed to buy drugs through his regular supplier (a South Asian) from another South Asian drug dealer in Chungking Mansions, shortly before his arrest at small hours on 19 January 2018. He said he purchased the drugs in bulk at a discounted price of $9,000 per ounce which costed him a total of $18,000 for the 2 ounces of drugs seized. He happened, he said, to have that sum of money with him at the time. He put the drugs in the boot, explaining that he did not want his girlfriend, the 2nd accused, to know about the drugs. Shortly after he boarded the car, he was intercepted by the police.

At trial, he testified that he did not know about the drugs in the charger, and that he only made the admission to the police at the scene with a view to exonerating his girlfriend, the 2nd accused, suspecting that at the time the charger which he had not seen before belonged to his girlfriend. He denied, at the scene, that he had possessed the drugs in the boot saying that he was scared at the time. Those claims of his - the assertions or denials he made under caution at the scene, in respect of the drugs in the charger (Count 1) and the drugs in the boot (Count 2) were obviously disbelieved by the jury by the verdicts they returned on the respective charges.

On the other hand, the jury obviously accepted his case that he possessed the drugs in the 2nd count for his own consumption only, not for trafficking. He claimed that he had often purchased drugs from the same seller and that 1 ounce of drugs would last him about one month. He would normally store the drugs at home in a locked drawer, and he would sometimes take part of it to his office and hide it inside the drawer of his office for consumption whilst at work. As to how he would measure and take the right portion of drugs out for consumption each time, he said he would just pour out certain quantity without the need to weigh it, as it had become, he said, his habit. He denied any adverse effect of his long-term drug abuse on his management of his business; except that he had a poor memory and slow response.

That version apparently was accepted by the jury, and it is thus on those bases that I should now proceed to sentence the 1st accused.

B. Accused’s personal

According to the drug addiction treatment centre report, he is no longer a drug dependant and he is considered not suitable for admission to the drug addiction treatment centre. The report however does inform the court more about the accused’s background.

He is now aged 50 years, the fifth amongst eight siblings. His father passed away in 2009 and his mother is now aged 82. He quitted schooling after completing Form 2. After that, he had worked at his father’s self-owned cooked food stall, and in 2009, he set up his own red wine wholesale company and had been running that business since then until his arrest and remand in custody for the present case.

He had married twice, had three daughters born to the first marriage, who were all grown-ups and were living apart from him.

C. Accused’s CRO and history of Drug Abuse

He has four previous criminal convictions for six offences. In 1987, he was convicted of common assault and was bound over for $1,000 for 2 years. In 1997, he was convicted of possession of dangerous drugs as well as assaulting police officers, and he was put on probation for 12 months. In 1999, two years after, he was again convicted of common assault and was fined on that occasion. Later on in 2003, he was convicted of possession of dangerous drugs and was sentenced to 8 months’ imprisonment for that offence, as well as possession of arms and ammunition without licence, for which he was sentenced to a concurrent term of 7 years and 4 months. That was a case heard in the High Court in 2003.

The drug addiction treatment centre report described how the accused was led astray and gotten into drugs. He started mixing with dubious characters and was led astray in 1997. He was soon lured to take drugs (heroin and ‘Ice’) in the same year, which led to his conviction in 1997 for possession of dangerous drugs and assaulting police officers.

After his probation period, he went wayward again and failed to abstain from drugs which eventually gotten him into much bigger trouble, when in 2003, he was convicted of the offences of “possession of dangerous drugs” and “possession of arms and ammunition” without a licence.

He was discharged from prison in 2008 and was subject to a two years’ statutory post-release supervision. His former wife had then left him with the three daughters and his father also passed away in 2009.

Upon completion of his statutory supervision in 2010, he continued his own business. In the same year, he had his second marriage. He later relapsed into taking drugs again and using it almost daily, spending about $200 on the drug each time. This eventually led him to the present offences which he committed on 19 January 2018.

As would be expected, by reason of his remand in custody for a period of almost two years and six months, he was no longer regarded as a drug addict. He is therefore considered not suitable for admission to drug addiction treatment centre. The only option that is left to be considered is one of custodial sentence.

D. Sentence

Offences involving drugs are serious, and the serious view taken by the court is reflected in the cases governing the principles on sentencing drug cases. The maximum sentence that can be imposed for possession of dangerous drugs is one of 7 years as well as 1 million fine on conviction on indictment.

In respect of the offence of possession of dangerous drugs, the proper approach to sentencing is well-established and is summarized 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.

As summarized in paragraph 7 of Wong Wai Wah, the three-step approach involved:

“Step 1: The judge should normally determine a starting point of between 1 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 ways into other hands apart from the offender’s. 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 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 would otherwise be.”

As to Step 2, Zervos JA at paragraph 12 of Wong Wai Wah referred to the explanation given by the Court of Final Appeal in Minney as to how a sentencing court should assess the latent risk as follows:

“16. ... the assessment of risk of dissemination depends on the drawing of the correct inference from the circumstances of the possession as established on the evidence. Before any such inference is drawn, the sentencing court must be sure that in all the circumstances of the particular case, the risk of dissemination is real. The sentencing judge is best placed to decide whether there is such a real risk. Often times, it is just a matter of common sense.”

And as to what factors are relevant to whether such an inference can be drawn, his lordship at paragraph 13 of Wong Wai Wah referred to Mok Cho Tik per Stock JA at 267D-E:

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

As explained by McWalters JA in HKSAR v Lee Chun Man, the starting point for a consideration of this issue must be to firstly ask the question whether the circumstantial evidence allows of an inference that there was a real risk of dissemination of the drugs, and if answered in the affirmative, the next question is by how much should the initial starting point be enhanced. On the question of enhancement, his Lordship said:

“19. The amount of the enhancement will depend on the degree of the latent risk. The higher the level of risk the greater the amount of enhancement. It will, therefore, be necessary for the sentencing judge to assess the degree of risk for it is the judge’s assessment of the degree of risk that will guide him in his determination of the amount of enhancement. The cases would suggest that the enhancements made by the courts range from 6 months for a low degree risk to 18 months or more for a very high degree of risk.”

D1. Charge 2

Approaching the matter as I must from the points of these principles and observations in the authorities mentioned above, I would deal with the 2nd count first, as it concerns the larger quantity of drugs seized from the boot of the car, namely 53.8 grammes of ‘Ice’ in narcotic content which form the main bulk of the drugs seized in the same transaction from the car. The total quantity of the drugs seized being 56.14 grammes of ‘Ice’.

In my opinion, as to Step 1, the appropriate starting point for sentence in all the circumstances of this count, given the large quantity of drugs involved and that the accused is a repeat offender having been convicted twice of possession of dangerous drugs, the appropriate starting point should be one of 18 months’ imprisonment.

As to Step 2, I am satisfied in the circumstances of the 2nd count that there is a real risk of dissemination of drugs and that such a risk is of “medium to high” degree. Bearing in mind the factors as outlined above (per Zervos JA in paragraphs 12 to 14 of Wong Wai Wah), I can properly infer that from all the circumstances of this case including the fact that:

a.  Large quantities of ‘Ice’ was found which according to Dr Tse’s evidence, the expert on daily consumption, could have lasted an average abuser of up to 560 days of consumption and even for a heavy user of up to 112 days’ consumption.

b.  The drugs were found in the boot of the car at the time when the 1st accused was with his girlfriend, the 2nd accused, out on a street at small hours of the day in question as opposed to being found in any secured place of his residence or other place. This means that the drug may be more readily disseminated to others.

c.  I have also taken into account the way in which the drugs found in the boot were packaged. They were packaged in two packets of 1 ounce each.

d.  And I would balance these factors against the personal circumstances as revealed in the evidence which I have outlined above of the 1st accused, including his assertion at trial that he was gainfully employed, having his own businesses to run at the time, as well as his drug habit and his consumption method which he claimed in his testimony that he used the method of burning the ‘Ice’ through tinfoil. These factors I also take into account.

Having considered all the circumstances, I consider that an enhancement of sentence of 12 months is justified for the latent risk identified. That would bring the starting point for sentence from 18 months to 30 months.

For Step 3, I accept as a mitigating factor in respect of this count that the accused had indicated his intention to plead guilty to simple possession, and that fact was communicated in clear and unequivocal term by way of a letter dated 5 February 2020 addressed to the prosecution and copied to the court. At that point in time, the trial was scheduled for 26 February 2020, a few weeks away, which trial was subsequently adjourned because of the general adjournment period necessitated by the COVID-19 situation, and that was announced by the judiciary on 21 February 2020, shortly before the date scheduled for the original trial.

The principles relevant to this issue in particular are set out in the recent Court of Appeal’s decision in HKSAR v Lam Kai Man, CACC 246/2019 which the court said supplement the guidance expounded by the Court of Appeal in the landmark decision of Ngo Van Nam. See paragraphs 52 to 56 of Lam Kai Man, where the court set out four principles in respect of the application of Ngo Van Nam. In particular, at paragraphs 55 and 56, the court said:

“55.  Thirdly, we do not propose to close the door entirely on clear and unequivocal offers to plead guilty to lesser or alternative charges made in writing by the defendant’s legal representative to the prosecution, which cannot for some good reason be entered formally on the record. However, the court should satisfy itself that there was good reason for the plea not being formally entered on the court record, and the onus will be firmly upon the defendant seeking the discount to show that he clearly and unequivocally offered the plea in question and the basis for the plea; and that such position had been adhered to for the remainder of the proceedings”.

Pausing here, I should say that I am so satisfied that there was such a good reason as set out in this paragraph. At paragraph 56 of Lam Kai Man, the court went on to say:

“56.  Finally, the extent of the discount will of course depend on the stage at which the proposed plea is clearly and unequivocally entered on the court record. Even then, it must be subject to the overriding discretion of the judge and the principles set out in Ngo Van Nam. However, that discretion must not be exercised in such a way as to compromise these principles.”

It is convenient in this regard to remind ourselves of the relevant passage of Ngo Van Nam which is at paragraph 214 of that judgment. It states in relation to an indication of a plea of guilty after the fixing of trial dates but before the first day of trial in the context of trials in High Court. At paragraph 214, the court in Ngo Van Nam said:

“214.  Next, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25 per cent discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20 per cent discount to be afforded to the defendant for a plea of guilty on the first day of trial. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”

In light of the above principles, and exercising my discretion in the particular context of this case and having duly considered all the relevant circumstances, especially those surrounding the indication of the plea via the letter of 5 February 2020 and the utilitarian value brought about by the indication of that plea at that stage to the conduct of the trial, I am prepared to allow a discount of approximately 23.3 per cent to the sentence on Count 2. That would mean the sentence on the possession of dangerous drug in respect of Count 2 would be reduced to one of 23 months.

D2.  Charge 1

I now turn to Count 1 which concern a much smaller quantity of drugs found albeit I should mention this count involves two different drugs, namely 2.34 grammes of ‘Ice’ and 10 tablets of ‘Five Chai’, weighing a total of 2 grammes. These drugs were found inside the portable charger in the armrest compartment which was located between the driver’s seat and the passenger’s seat where the 1st accused and the 2nd accused, his then girlfriend, were respectively sitting at the time of the offence.

Applying the principle for sentence I have outlined above, and taking into account all the relevant circumstances concerning this particular alternative offence of possession of dangerous drugs in respect of Count 1, I take the view that an appropriate sentence on this count is one of 6 months. The 1st accused contested this charge and there is no discount for plea available to him in this regard.

There being no other mitigating factors available to reduce the sentences that I derived above, the respective sentence for those two charges would be one of 23 months for the alternative conviction of possession of dangerous drugs in Count 2 and one of 6 months for the possession of dangerous drug offence in Charge 1.

E.  Totality Principle

I turn to consider totality. As pointed out by Mr Justice Stock VP in the case of HKSAR v Brian Alfred Hall [2013] 5 HKC, the “key test” for determining if sentences for two offences should be ordered to run concurrently or consecutively is that whether each offence was separate in time and objective, and whether each added to the culpability of the other.

Considering that the drugs in the present case were found on the same vehicle, literally at the same time and constituting in effect one single transaction, and that the 1st accused was found to be possessing these drugs all for self-use, and to reflect the total culpability of the two charges, I take the view that the two sentences can run concurrently.

I thus order that the sentences I imposed on each of the two charges as convicted to run concurrently, making a total sentence of 23 months’ imprisonment. This is the overall sentence that I impose.