COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.
On 20 July 2013, the defendant entered Hong Kong via the green channel at the customs arrival hall of Lok Ma Chau. She was searched and found to be in possession of a number of packets of drugs. She admitted the drugs were ‘Ice’ and magu. Some were purchased by her for her own consumption and some given to her.
The narcotics were found upon analysis to be 18.66 grammes of methamphetamine hydrochloride and an unquantifiable amount of ‘Ice’ with a street value of HK$13,000.
She was formally charged on 22 July 2013 and bail was granted to her on 9 August that year. However, she failed to attend the hearing scheduled on 16 September 2013 and a warrant of arrest was issued. She surrendered herself to the police after six years on 17 June 2019.
Under caution, she said she absconded because her children were still young and she wanted to spend more time with them but since they have now grown up, she had decided to come clean.
The defendant is now aged 47. She has a clear criminal record. By way of mitigation, I was told that at the time of the trafficking offence, she just had a divorce and lost custody of her children who were aged 5 and 11 at that time. She absconded from court proceedings from September 2013 out of panic and fear.
Whilst on the run, she returned to take care of her children regularly and even more so since 2017 after her husband suffered a stroke. It was urged on her behalf that part of the drugs were for her own consumption, evidence in her urine test conducted shortly after her arrest whilst she was remanded in custody showing ‘Ice’ positive.
In sentencing the defendant, I have taken into account her plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel. I have also perused the various mitigation letters written by her, her ex-husband and her son.
The present case happened before the new guidelines laid down in Tam Yi Chun came into play. So I have to use the old guideline in Ching Kwok Hung which means trafficking in 10 to 70 grammes of ‘Ice’ attracts a starting point ranging from 7 to 10 years. The narcotics in the present case is 18.66 grammes of methamphetamine hydrochloride. The defendant imported drugs from China and there is a cross-border factor in the present case.
So for Charge 1, I adopt a starting point of 7 years and enhance it by 6 months to reflect the cross-border factor. In relation to the submission that part of the drugs were for her own consumption, I bear in mind that in the present case there were 10 packets altogether with a street value of HK$13,000. No paraphernalia associated with either the consumption or trafficking was found.
Before the present offence, she had no previous record in relation to drug-related offences. Her urine showed methamphetamine positive. According to her own antecedent statement, she was unemployed prior to her arrest. Counsel made it plain today that he is not advancing that a significant amount of drugs in this case was for the defendant’s consumption. I was also told that in her cautioned statement she stated that the drugs given to her would be shared with some of the friends if circumstances arise.
In the case of Choi Chun Wo, CACC 273/2017, the Court of Appeal remarked that what is a significant amount will depend on the particular facts and circumstances of the case. Bearing in mind the risk of abuse in this avenue of mitigation, the primary task of the sentencing court is to determine where the truth lies in a claim of self-consumption on a proper, factual and evidential basis.
Moving to the evidence in this case as encapsulated in the Summary of Facts which she has admitted to, amounts to 10 packets found, she said that DD-1 and DD-11 were for her own consumption. All the other packets’ amounts, which DD-2 and others were of more significant amount, were given to her by others.
So the amount of narcotics in relation to DD-1 and DD-11 were 0.35 and 0.41 grammes which, adding together, equates 0.76 grammes. The evidence, as admitted by her, do not allow me to find that a substantial amount was for her own consumption. I refer myself to the case of Kong Tat Lung, CACC 27/2016, which says that where the portion for self-consumption is not prominent or substantial, a small amount or discount, in that case 4 per cent, could be granted within the judge’s discretion.
In the present case, I am not prepared to find a substantial portion was for her own consumption. However, I am prepared to discount 6 months from the starting point of 7 years and 6 months, which is around 6 per cent.
Now, turning to the discount for plea, I refer myself to the case of Lam Chi Kwan, CACC 105/2018, where the Court of Appeal said the following:
“As a matter of law the judge was entitled to, and normally should, reduce the discount to be awarded for a plea of guilty when the plea is delayed because the defendant has absconded. It is settled law that the reduced discount should be between 20 to 25 per cent.”
Taking into account her self-surrender after 6 years of abscondence, the most beneficial discount that can be afforded to her will be a 25 per cent discount for Charge 1. For the 2nd charge, she is entitled to a full one-third discount. So for Charge 1, she goes to prison for 63 months; for Charge 2, 4 months to run consecutively. So
she goes to prison for 5 years and 7 months.