Facts Admitted
On 10 December 2018, the police mounted an operation at the Sun Chui Estate in Shatin. At about 9.45 pm, the accused was seen by police officers holding a plastic bag in her hand. Their attention was drawn to the accused because of her suspicious conduct. They followed the accused as she walked to the bus stop near Sun Ming House, Sun Chui Estate in Chui Tin Street. Police perceived that she had attempted to flee by running to the Ground Floor of the High Block of Sun Ming House. At the High Block the police revealed their identity. The accused questioned their identity and at the same time removed a green box from the plastic bag which had been carried by her. The accused was seen to drop the green box onto the ground and she attempted to flee and she was subdued.
The green box was picked up and opened in the presence of the defendant and inside they found two plastic bags of suspected dangerous drugs. The accused was arrested and cautioned, she remained silent in answer to the caution. The suspected dangerous drugs turned out to be 62.8 grammes of methamphetamine hydrochloride in one bag and another containing 59.2 grammes of methamphetamine hydrochloride.
The accused was searched following her arrest. The only item of significance that was found was the amount of $7,400 and some mobile phones. A search of her residence produced nothing further. The estimated street value of the total amount of methamphetamine hydrochloride found in the possession of the accused is just over $54,000.
Procedural History
The procedural history of this case is of some importance. The case occurred in 10 December 2018, well over two years ago. The case came before a magistrate, sitting in the Shatin Magistracy. It proceeded in the magistracy until 30 September 2019 when the case was committed for trial. On 4 October 2019, an indictment alleging the charge the subject of the plea of guilty was filed in the High Court. The return date on the indictment on which day it was listed before Andrew Chan J. That matter was taken out of the list and came before Li J on 18 February: I think that should be 2020. A case management hearing was heard and a trial was set for 22 May 2020. That matter was moved to 22 July 2020 then vacated to commence before me on 7 January 2021.
In the meantime, there were quite separate criminal proceedings against the accused in the High Court. In HCCC 494/2014, the accused came before D’Almada Remedios J, facing a charge of trafficking in dangerous drugs. The locality of that charge was in Lung Yeuk Tau in Fanling.
The dangerous drugs subject of the indictment was 40.43 grammes of a crystalline solid containing 39.92 grammes of methamphetamine hydrochloride, 99.94 grammes of a mixture containing 25.41 grammes of heroin hydrochloride, five tablets containing 0.03 grammes of methamphetamine and 35 tablets containing 0.46 grammes of midazolam.
To this charge, the accused pleaded not guilty and was convicted after trial. The facts on which D’Almada Remedios J sentenced the accused are that the accused was found in premises with another female. The police officers saw the accused holding two bags which contained dangerous drugs. The learned judge found that the accused threw one of the bags into a room and hid the other bag of drugs in the waist of her clothing. Devices for inhaling drugs were found as well as the drugs. The value of the drugs in that case was $121,933. In the result, a sentence of 10 years was imposed.
The present case came before Alex Lee J on 16 December 2020. Counsels and solicitors then acting for the accused applied to be discharge because so they told the learned judge a situation of professional embarrassment had arisen. Permission was given for the legal team then representing the accused to withdraw. An order was made that the case be fixed with a note that the trial was to commence as soon as possible.
The case was refixed before me on 7 January 2021.
When the case came on before me I was told by those representing the accused they had only just recently been instructed but had come to realise that the previous lawyers had asked the Housing Authority to disclose the identity of the security guard because the potential testimony of the security guard might be relevant to the case for the accused. Essentially, the theory implicit in this approach was that the security guard in question, given her position at the doorway of the housing estate outside which the interception took place, must have seen the interception of the accused. The assertion of the accused through her present counsel was that this guard pointed out to a police or police officer or officers, a package on the ground which contained the drugs, the subject of the present indictment and the accused had not dropped the package. This was relevant, so I was informed, because the essence of the case of the prosecution was that the accused, on being intercepted by the police, found a package on the ground. On that premise, the case for the accused was that she was not in possession of the package containing the drugs. Previous solicitors have made enquiry at the Housing Authority and received a reply which suggested that the Housing Authority was not prepared to make the revelation because of privacy concerned.
Although, I was somewhat sceptical of the potential value of this evidence, it is not such that it was something which could be completely ignored. I came to the view that a fair trial of the proceedings merited at least an attempt to make appropriate enquiries to the security guard if possible. Accordingly, I ordered that the Authority make the revelation pursuant to section 32 of the Criminal Procedure Ordinance, Chapter 221. The Authority complied, the security guard was interviewed by the lawyers representing the accused. I was informed by counsel for the accused that ultimately the security guard in question recalled nothing of the event.
In recent terms, the prosecution disclosed to the lawyers acting for the accused two items of unused materials. The first was the CCTV of the entrance nearby the place the accused was intercepted, I will return to that in a moment. Second item of information given to the defence was the analysis of the urine of the accused undertaken by the prison authorities following the remand of the accused in custody following her initial arrest for this case. The urine sample revealed the presence of methamphetamine. That sample was taken four days after her arrest.
Returning to the CCTV which was relatively recently disclosed, it revealed very little of the interception. It did not depict the package the subject of the charge and certainly did not depict the accused dropping it. What it did depict was the existence, at the time of the interception, of the security guard to the left of the entrance door (viewed from the vantage point of the camera). It certainly did not depict any act consistent with the security guard pointing out the locality of the package to the police. Plainly, there was no sound on the video.
It is regrettable that the two items had not been disclosed earlier and appeared to have been disclosed following enquiries by those presently representing the accused. From my vantage point, those representing the accused have done everything they could reasonably have been expected to do in conducting appropriate enquiries to mount a vigorous defence of the accused.
I do not know what the previous defence lawyers did with the issue of the presence of the security guard but it appears if that such enquiries may have been undertaken, the matter was not pressed. It is easy to imagine that the previous lawyers may have taken a negative view of the potential of this evidence - and that there would be a solid basis for them taking that view - but it was one of those enquiries which, in the professional judgment of those presently representing the accused that had to be seen through to its logical conclusion. The current set of lawyers had only been appointed in the weeks preceding the hearing on 7 January 2021 and they very properly raised this matter with me.
Ultimately, the enquiries, having been followed through, in the manner I have described, as a vigorous manner but on 11 January 2021 the matter took a different course. The guard has been identified. She told the lawyers she remembered nothing and was unable to assist. It appears the discussions have culminated in the accused deciding to plead guilty. In the event, she was arraigned and pleaded guilty to the indictment.
Antecedents and mitigation
The accused is a Hong Kong permanent identity card holder and was born in January 1975 and that makes her 44 years of age. She has completed secondary education to level 5. She has worked as a waitress and a hair stylist in the past. She has a 71-year-old mother and an elder sister and one daughter. Her father died some time ago. She is a drug addict and has a criminal record which is, to say the least, unattractive.
Her record dates back to 1995 and most of the drug offences until 2007 were possession of dangerous drugs. However, in 2007, 2013 and 2020, she was convicted of trafficking in dangerous drugs. The sentences she received for those were 7 years, 20 months and 10 years respectively. The last of those sentences is the one which resulted from the proceedings before D’Almada Remedios J to which reference was made earlier.
Counsel for the accused urges that I pass what he characterises as a sympathetic sentence. The basis upon which it is contended that I should sentence in this way starts with the premise, which I accept, that the accused is a drug addict. Amphetamines were found in her urine on remand into custody of the Commissioner of Correctional Services. She says that part of the methamphetamine hydrochloride found in her possession was in part for her own consumption. Given, as counsel points out, no material for packaging or distribution was found at the premises, it would appear that she is a low-level courier. The accused is almost certainly an addict. She has amphetamine in her urine. What I am not prepared to accept that part of the ‘Ice’ found in her possession before use was for personal consumption.
Counsel for the accused realistically submits that the plea of guilty was entered after a trial had commenced. She should still receive the one-third discount normally accorded to those who plead guilty at the earliest practicable moment.
I have read mitigation letters tendered on behalf of Father John Wotherspoon, the mother of the accused and the accused herself. The letter from the mother indicates that there was, in the early life of the accused, a sexual assault on the accused which her mother believes may have embittered the accused. Further, I am informed that her husband is in the late and terminal stages of cancer. These are very sad factors which I regret to say can count for very little in the determination of sentence. Given the potential devastation that the ingestion of ‘Ice’ can cause, a fact probably very well known to the accused, the balance against these sad and tragic items can rarely be seen.
Sentencing Principle: Starting point, Trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong have, for many many years, taken a severe view of drug trafficking, particularly in relation to “Ice”. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to “Ice” is, to say the least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to “Ice” is fraught with instances of disappointment. The trafficking and possession of ‘Ice’ can also have serious consequences for the family members close to the accused.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs, particularly ‘Ice’. Further, the conduct of persons affected by ‘Ice’ in private and more pertinently in public can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drug, including ‘Ice’, which is of course the subject of this charge. The maximum penalty under the law is a fine of $5 million or life imprisonment.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. The range in question is that between 70 grammes and 300 grammes. That attracts a sentence of between 11 years and 15 years. The range in question is upon the basis of sentence following conviction after trial. That is the basis upon which the starting point is calculated. The guidelines which were recognised in Tam Yi Chun (above) reflect the seriousness of the case.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent. However, where the plea is entered at a later stage, a lower level of discount is indicated.
In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, § 215, the Court of Appeal recognised the range of circumstances which might arise as to a late plea. The starting point for analysis was a discount of around 20 per cent from the starting point. However, the Court of Appeal recognised that, against that background, the actual discount accorded to an accused in an individual case was a matter for the sentencing court.
Assistance to Authorities
In this case, the accused has given what is known as a non-prejudicial statement in an attempt to provide assistance to the authorities. It has always been the position of common law that an offender committed of a crime will receive credit against his sentence for any assistance which has been rendered to a law enforcement agency. The authority for that is Z v HKSAR (2007) 10 HKCFAR 183. The matter was further considered by the Court of Appeal in HKSAR v Lo Sze Tung, Stephanie CACC 190/2017, [2018] HKCA 421. In that case, the courts recognised that a genuine but unfruitful attempt of assistance might attract some discount. Lo Sze Tung was concerned with an attempted but unfruitful controlled delivery. That case built on principles identified in HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692. The effect of these two cases is that one looks at the substance of the efforts made by the accused.
Application of Sentencing Principles
Starting Point
It is necessary to identify the seriousness of the offence and the role of the accused in her act of trafficking, that there should be an evaluation of the nature of the conduct of a trafficker who can be characterised as a courier was recently articulated in HKSAR v Herry Jane Yusuph [2020] HKCA 974.
The Court of Appeal in that case rejected the proposition that once the label “courier” is attached to the conduct of a person to be sentenced for trafficking in dangerous drugs that this is the end of the discussion. Specifically, the Court of Appeal rejected the analysis in HKSAR v Manalo [2001] 1 HKLRD 557 which had suggested what the court characterised as a “discretionless starting point based on the quantity of the dangerous drug alone”. In Yusuph, the Court of Appeal concluded:
“The danger of such a discretionless approach is that it makes the same erroneous assumption as Stuart-Moore ACJHC made in Manalo, that there is a precise arithmetical starting point for anyone who comes within the general description of ‘courier’ or ‘storekeeper’.”
The court went on to say that there is, proposed in the sentence, a discretion to assess the role and the culpability of the accused in deciding where in the applicable sentencing band or, possibly, whether a person lies, for sentencing purposes, outside the band.
Although we do not know much about the journey of the accused except its concluding moments, the overwhelming inference is that she is a low-grade courier simply carrying drugs from point A to point B. In my opinion, that puts her culpability below the mathematical medium for this drug. The mathematical medium if all the drugs were for trafficking is a starting point of 11 years and 11 months. Given her role as a courier of a fairly low grade, I fix her starting point at 11 years and 2 months.
It was submitted that the accused had 50 per cent of the drugs for self-consumption. As I have already indicated, I do not accept this to be true. However, even if it was true that some of the drugs were for self-consumption, I could not accept that it is as high as 50 per cent. If some proportion was for self-consumption, it would have to be a substantial amount and I do not believe that it was.
Although I do not accept that any of the ‘Ice’ was for personal consumption, if some was, the penalty for such simple possession of such an amount (let alone the possible enhancement for latent risk) the overall starting point would actually be higher than if the whole of the drugs have been sentenced on the basis of trafficking.
As to assistance to the authorities, it is asserted that the accused gave information about a person we will call A, who lived in a particular address in Tin Shui Wai. The police took this seriously but after numerous attempts, they were unable to locate A in either of the premises or at all. The prosecutor informed me that A was, in any event, a person of interest to the police in connection with drugs. Apparently in the last 10 years, he has been arrested on a number of times on suspicion of drugs offences. Counsel for the accused also contends that the police have arrested the junior associate of A. There is nothing in the information given to the police about this associate. Further, there is nothing to suggest that there was any connection between the arrest of this associate and any assistance offered by the accused. In my opinion, there is an approximate analogy between the situation where a suspect undertakes what is sometimes known as a “controlled delivery” which is unsuccessful. On that basis, a modest additional discount for doing the best she can to assist the police, even if there is no real evidence of substantial assistance, I propose to enhance the discount by 5 per cent.
On any view, given the procedural history of this case, the accused is not entitled to a full one-third discount for pleading guilty at the first available moment. There is a history of trying to obtain information about this security guard. Had she known about the position of the security guard at about the time when these requests to the prosecution started, I think that once she realised the position of the security guard and what the security guard would have adopted, she would have adopted the same position as she now has having learned of what the security guard says. All of this could, and should have been done before the plea. It wasn’t. However, the accused has had the benefit of lawyers who have examined every avenue reasonably open before the change of plea. They acted with admirable vigour and did so against the background of late disclosure from the prosecution. Although I do not know and cannot know what advice was tendered to the accused following the fact that the security guard line of enquiry came to nothing, it is safe to proceed on the assumption that the accused received and accepted some pretty clear-eyed advice. I can see a strong argument that she should have pleaded guilty earlier, but it was entirely reasonable to make the enquiries that were made. Some judicial time has been wasted. The rationale of discounts for a plea of guilty is an entirely pragmatic one to prevent judicial time being wasted by a late plea. There is no perfect answer to what the appropriate discount should be against that policy and background. I think an appropriate discount would be 25 per cent. I recognise that I might justly be accused of over generosity as far as that is concerned.
It was also submitted that the history in the previous case, that is HCCC 494/2014, in which the accused was sentenced to 10 years and is presently serving that sentence that I should make allowance for the fact that there was a long procedural history to that case and the case before Remedios J was a retrial and got started after some false starts and the trial in which the accused was not convicted because of a hung jury. These matters might have been urged in mitigation before Remedios J. They are not germane to mitigation in the present case and despite the forceful entreaties of counsel for the accused in the present case, I specifically decline to take into account the procedural history of the previous case.
Disposition
Accordingly, when one allows the discount for the good faith attempted assistance to the police and the plea of guilty, the best I can do in terms of discount is to reduce the starting point in this sentence by a total of 30 per cent. On that basis, the sentence for this offence would be 7 years and 9 months.
However, the accused is serving a sentence of 10 years’ imprisonment imposed in HCCC 494/2014 which was imposed by Remedios J on 29 September 2020. The conduct of the subject of this charge is an entirely separate matter from the conduct from the subject matter of the charges before Remedios J. On principle, the sentence in this case should be entirely consecutive with the sentence in HCCC 494/2014. However, much is the sad parade of sentencing for trafficking in dangerous drugs starting in 2007 in relation to this accused does not seem to have registered with her. I think that it is just that the sentence in this case should be partly consecutive and partly concurrent with the sentence on the accused in HCCC 494/2014.
Would the accused please stand up? The order of this court is that the accused is sentenced to a term of imprisonment of 7 years and 9 months and that I order that 2 years and 9 months of that sentence be served concurrently with the sentence on the accused in HCCC 494/2014 and 5 years of the sentence in this case be serve consecutively.