HKSAR v. Dinh Ka-yan, Gigi

HCCC 398/2019

[2021] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 398 OF 2019

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Dates of Hearing:  13-17, 22, 24, 30 July, 12 August 2020 & 2 June 2021

Date of Sentence:  2 June 2021

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REASONS FOR SENTENCEAND FORFEITURE

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1.Ms Dinh, you were found guilty after trial of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, in that you trafficked in 27.58 grammes of methamphetamine hydrochloride (“ICE”) on 13 April 2019, when you were stopped at the junction of Waterloo Road and Nathan Road at 3.00 am in the morning.

Prosecution Case

2.It was 03.40 a.m. in the morning when two police officers noticed you and another woman acting furtively outside of No 538 Nathan Road, Yau Ma Tei, Kowloon.  You were wearing a denim jean jacket from which the officers recovered one larger re-sealable plastic bag containing 26.8 grammes of ICE and one smaller re-sealable plastic bag containing 0.78 grammes of ICE.  They were both recovered from the inner left jacket pocket.  From that same jacket, but this time from the inner right pocket, the officers recovered HK$6,000 in cash.  Several other items were recovered from your handbag, which included inter alia HK$825 in local currency and some small sums of Macanese and Taiwanese currency.

3.Upon arrest and caution you said that the ICE was bought for your self-consumption.  In your video recorded interview taken later that same day when asked what you meant by that and by the statement “Give me a chance madam”, you declined to answer, as is your right.  You did explain that you had only just run into the lady who was apprehended with you but you were not prepared to say why you were there at 3.00 in the morning, save to say that you could not remember how you came to be there or where you were going.  When shown the exhibits you also exercised your right to silence. In respect of your personal circumstances you told the police you were unemployed and living on CSSA receiving approximately $8,000 per month.

4.A thorough search was carried out at your home address and nothing was found.

Defence Case

5.In your evidence in chief, you confirmed that you had come to Hong Kong as a child with your parents in 1989.  You had married at the age of 17 in 1994 to another Vietnamese citizen and had a daughter of that marriage in 1997 but had divorced in 1998.  It would appear that your husband at some stage returned to Vietnam.  You told the court you had another relationship after that and gave birth to your second daughter in 2000.  Her father is a Hong Kong citizen but the relationship came to an end in 2005 and you say he is now in America.  You entered into a further relationship in 2012 and had a little boy in 2013 but that relationship came to an end in 2015.  Whilst you have custody of all three children, your son was taken into care and was placed with a foster family in 2015 because you were suffering from depression.  In 2015, your daughters would have been 18 and 15 years of age.  They remained with you but you sought help for your depression through the out-patient department of Princess Margaret Hospital where you attended on a monthly basis in 2019.  You say you were given anti-depressants and sleeping pills, which is in conflict with your evidence in court when you said that the ICE which you took six to seven times a day made you sleepy as you came down from it and you particularly relied upon the fact that your withdrawal symptoms were marked by sleeping for a significant period of time.

6.At the time of your arrest, you were in another relationship.  This time with a Pakistani citizen called Abi, who lived in Chungking Mansions.  You said that you were holding down a part-time job as a waitress in a karaoke bar between three and four times a week in the evenings but had not told the police about this in interview because you had been afraid of being prosecuted for claiming CSSA and not declaring your income.  You say you were paid HK$80 per hour and could earn between $1,440 and $1,920 per week.

Status in Hong Kong

7.So far as I can ascertain from your evidence in trial and within the Newton hearing, you have been in Hong Kong for approximately 30 years but are still not the holder of a full Hong Kong identity card.  You were born in Vietnam in 1977 and came to Hong Kong with your parents in 1989 when you would have been approximately 11 years old. From what I understand, you entered Hong Kong as an illegal immigrant but must have been given a conditional right to remain.  You married in Hong Kong in 1994, at the age of 17, to a Vietnamese citizen.  In 1995, you had two criminal matters recorded against you, those were of possession and for the sale of dutiable goods, for which you received a fine.  A month later, in 1996, you were prosecuted again for the same offences and were further fined.  Two months after that you re-offended again but this time you were also prosecuted for theft and therefore you received suspended sentences and further fines.  This offending would no doubt have affected your status in Hong Kong, which would not have been advanced by the fact that you were before the courts for a further 11 offences in 1996 and when you were dealt with for the breach of suspended sentence.  As a consequence of that breach, you received a sentence of imprisonment of three months.  That was followed by a further two months’ imprisonment in August 1996.  For a while your offending stopped.  You had your first daughter in 1997 but were divorced in 1998.  In 2000, you gave birth to your second daughter from a different relationship which lasted until 2005. In 2009, you came once more before the courts for theft for which you received a fine and in 2010 you were dealt with for the first time for smoking or injecting dangerous drugs which is some 10 years after you say you first started taking cocaine.  You were the mother of two daughters at that time who were then just 13 and 10 years of age.  Not surprisingly you were placed upon probation.  A year later you were finally dealt with for breach of condition of stay for which you received a short suspended sentence but two months after that you received four months’ imprisonment for breaching a probation order.

8.In evidence in chief, you told the court that you started taking ICE in 2011.  You say that in 2012 you entered into a new relationship and in 2013 you gave birth to your son but that year you were also before the court for AOABH for which you luckily received a further suspended sentence.  Your relationship lasted until 2015, at which time your son was taken into care because the relationship had ended and you could not cope.  You returned to crime at that stage, for in November 2016 you were dealt with for money laundering for which you received a sentence of imprisonment of 20 months.  Mr Leung, who also represented you at that time, explained that you had spent a substantial part of that sentence on remand and you were released shortly thereafter.  In any event, it took a year before you came before the court once more, this time for possession of dangerous drugs for which you were fined.  Clearly none of those appearances deterred you from abusing drugs or from offences of dishonesty.

Finances

9.The HK$6,000 in cash found upon you at the time of your arrest, and which the prosecution say was part of your trafficking activities, was recovered separately from the other smaller amounts of money and it came from the same jacket in which you carried the drugs.  Whereas, the other monies including $825, were held within your handbag.  That is indicative of what you considered to be your property as opposed to the property related to your dealing.  As I understand the evidence you were not in a position to travel abroad and had not done so.  Why then would you have upon you Maccanese and Taiwanese change?

10.There is the further conundrum of the lapsed bank account.  You had been granted CSSA in 2000.  It was originally paid into your HSBC account via autopay with the rental allowance for your public housing being paid direct to the Hong Kong Housing Authority.  Between April 2018 and March 2019, the monthly average had been $11,761, which would have included special needs payments.  As of January 2019 however, you received payments directly in cash from your local Social Welfare Department.  From January to March 2019, it is an admitted fact that you received separate amounts of $8,348, $8,583 and $8,583 respectively.  You told the court in your evidence in chief that your bank card had expired and that you could not renew it because you had lost your identity documents and it was for this reason that you received the CSSA payment in cash.  You said it was also more convenient because the social welfare office was in your complex.  In addition, you told the court that you earned between $1,440 and $1,920 per week from your part-time job, which I have already mentioned.  According to you, the income from the part-time job was not the only thing which you concealed.  You also said that the father of your second daughter, who by now lived in the US, sent US$500 every month or so which was not sent by him via the banking system but in cash through his eldest son who lived in Hong Kong.  This is one of a number of examples of why your evidence about your bank account does not hold true.  It would clearly have been far more convenient to receive these monies directly from him via your HSBC account and I have still not received any good reason why you would have let that lapse or why, if it had lapsed, you would not have sought to renew it.

11.In your evidence in chief, you also said that the father of your eldest daughter had passed away in 2013 and had left a share in a plot of land to your daughter which, after sale, had resulted in HK$70,000 being given to her by his family.  Despite this sum being received earlier than January 2019, at a time when you say you had access to your bank account, this money had not been paid through international banking services into your account but you had it in cash in a safe in your wardrobe which stood in your living room.  A wardrobe that the officer does not remember seeing or searching but if he had seen the wardrobe you referred to, he is sure he would have looked within it carefully and he would have noticed a safe if there had been one.  He also said, if there had been a safe, he would have required it to be opened.  In the absence of any allegation of malafides on the part of the officer, I do not accept that any such safe existed nor do I accept you possessed HK$70,000 which you say you held on behalf of your daughter as I have seen no independent proof of any of these undisclosed assets/payments.

12.In addition to all of the above, you stated that your eldest daughter worked part-time at McDonalds and earned approximately HK$10,000 per month from which she regularly paid you HK$3,000 to 4,000 per month.  This was a similar amount to that which you say your current boyfriend gave you. According to you therefore you were in receipt of substantial amounts of cash on a monthly basis.  None of which you thought fit to place in a bank account.

Consumption

13.The issue of self-consumption was raised once more during the sentencing hearing after trial.  You were provided with the opportunity to support the contention that 0.78 grammes of the drugs found upon you, in other words the DD found in the smaller packet, was for your own consumption but Mr Leung rejected that suggestion on instructions from you and submitted that the whole of the drugs was for your own consumption.  As a consequence the court offered you the opportunity to give evidence within a Newton Hearing.  You did not avail yourself of that opportunity nor did you wish to address the court on the issue of forfeiture.  You maintained your stance in trial.  Anything which is relied upon by counsel over and above that evidence is a bare assertion and will not be accepted by the court in the face of the opportunity for the defendant to give evidence herself without any fear of further penalty.

14.According to your antecedent statement taken on the day of your arrest in 2019, you stated that you had been taking ICE for two years i.e. from 2017, which would coincide with your release from prison for money laundering.  However, you now ask the court to disregard that.  Indeed, on the last occasion before the court, Mr Leung, on your instructions, submitted that you had never said such a thing to the police and yet today I have your signed witness statement where I can see that you did give that evidence.  From all that this court knows of you, the evidence you gave within that antecedent statement is more likely to be true than the evidence you gave in court during trial or through counsel in mitigation.  That is because, in attempting to justify a consumption rate of 0.7 grammes per day on a daily basis, you needed to show what Dr Tse has referred to as ‘heavy use’.  You stated on oath that you commenced abusing ICE in 2011.  It was put to Dr Tse that it was possible for someone to gradually increase their dosage between two and three years to a stable dosage of 0.7 grammes per day.  To which his reply was that it was possible.  It was then suggested that it was possible that a user could take that dosage every day and not as he had suggested three to four times per week.  He also agreed it was possible.  The tenor of these questions suggested to the jury that your level of consumption had increased from 2011 to a level at which you plateaued some two to three years later and that you were a heavy abuser of ICE.  But when the court considers your personal history and your record of offending, that cannot be correct.

15.In 2013 you gave birth to a son.  You would have had antenatal appointments and thereafter you said you were attending at Princess Margaret Hospital on a monthly basis for your mental health problems.  If you had been abusing drugs at those times, it would have been noticed.  You were incarcerated in 2011 for breach of a probation order, and in 2015/16 for approximately 14 months at which time you could not have been consuming ICE.  That does not account for any time you may have spent on remand for the AOABH in 2013.  I do not therefore accept the suggestion put forward to the jury in trial that you started taking ICE in 2011 and thereafter over a period of two to three years you stabilised at 0.7 grammes per day and were in effect a heavy user for some substantial period of time up to and including the commission of this offence.  Given the date of your imprisonment for money laundering, at best, you could have re-commenced taking ICE in early 2017.  You would not have had any financial support at that time as you were not in a relationship and still had two daughters to look after.  You could not possibly have afforded a habit of 0.7 grammes per day nor could you have been an effective mother with that type of habitual consumption and, as you suggest, keep it completely hidden from your family.

16.To that end I think it prudent to mention at this stage how it is you say you did that.  On oath you say that you hid the drugs and the paraphernalia inside a kitchen cupboard which could not be opened and which was not searched by the police.  It came to pass that you only have a single double kitchen cupboard which has two doors, one of which is blocked by a table.  The door is not stuck at all, it is simply blocked and the table can be moved in order to unblock it.  That, however is not necessary as you can gain access to the whole cupboard merely by opening the right hand door.  To suggest the police would not have done so is highly improbable.  What is also highly improbable is the suggestion that you consumed this 0.7 grammes per day by taking 6 to 10 draws upon it throughout the day at which time you sealed the kitchen so that none of your children, including your young son could enter and no one realised you were high.  I entirely reject, as did the jury, the suggestion that these drugs were for your own consumption save perhaps for a very small amount which you might have consumed during working hours or with your boyfriend but that amount would have been negligible.

Conclusion

17.In accordance with the guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the guideline sentence after trial for between 10 and 70 grammes is 7 to 11 years.  For 27.58 grammes the starting point for sentence would be 8 years and 2 months.  I will give you the benefit of the doubt and will discount that starting point by two months for the fact that you possibly possessed part of the 0.78 grammes for self-consumption making a sentence of eight years.  In calculating that discount, I have to take into account the latent risk that you would not consume it but that you would share it with your boyfriend or sell it if the opportunity arose.

18.There is no other mitigation which has been advanced which can afford you a further discount. Your personal circumstances and the position of your youngest child are difficult but they cannot reduce the sentence I must pass further.  As is your right, you put the prosecution to proof of their case against you and you must bear a greater sentence than you would otherwise have done if you had pleaded guilty at the first opportunity.  You will go to prison for eight years.

Forfeiture

19.There is an application by the prosecution for the forfeiture of HK$4,500 under s56(1) of the Dangerous Drugs Ordinance (“DDO”), Cap 134.  That section allows the court to forfeit any money which has been used in the commission of an offence or in connection with it or any money received by you or possessed by you as a result or product of a relevant offence, which this is.  It is an application which is civil in nature and the applicant bears the burden of establishing on a balance of probabilities that the monies in question are liable to forfeiture.  Once the applicant has established a prima facie case for forfeiture the burden passes to the respondent on the same standard to show the court why it should exercise its discretion in the respondent’s favour and not make the order sought by the applicant.

20.In considering this application I take into account the decision of the Court of appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57 which laid out the relevant principles to be applied and the procedure to be adopted.  As this is an application under the DDO Cap 134, the court’s power of forfeiture rests upon s56(1) (a) and/or (b).  The first issue which arises is whether or not there is a prima facie connection between the monies and the commission of an offence under the Ordinance.  It is for the applicant to outline the evidence upon which it relies in support of the application to show the statutory pre conditions have been met.  That has been satisfied by reason of the evidence before me in trial.  The burden therefore shifts to the respondent.  The application concerns the monies found upon you at the time of your arrest and I have already set out my reasoning at paragraphs 9 to13 above.  The Court does not accept what you have said about your means.

21.The HK$4,500 is ordered to be forfeited under s56(1) DDO Cap 134.

Mr James McGowan, counsel-on-fiat, on behalf of the Department of Justice, for HKSAR

Mr CK Leung, instructed by Lau, Chan & Ko, assigned by Director of Legal Aid, for the defendant