HKSAR v. Feng Xueyin

HCCC 39 &40 /2022

[2023] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 39 & 40 OF 2022

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant was listed under HCCC 39/2022 for trial upon one count of trafficking in dangerous drugs contrary to s4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. At all times she had insisted that the drugs found in her possession were for her own consumption[1] and offered to plead guilty to possession. She formally offered a plea to possession to this court on arraignment but Mr Ross was not in a position to accept that plea.

2.The date of the offence was 1 January 2019. She was found in possession 13.71g of ICE, 0.22g of Cocaine and 5 tablets with traces of Nimetazepam.  She was arrested for possession of dangerous drugs and interviewed upon that basis. She maintained a consistent story throughout that these drugs had been purchased for self-consumption.

3.Initially, the defendant was given bail for possession of dangerous drugs, which was extended at subsequent court hearings. However, she failed to appear on 22 May 2019, for Mention, and a warrant was issued for her arrest. The defendant was re-arrested on 5 November 2020, for failing to surrender to custody without reasonable cause contrary to s9L (1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 and has been remanded in custody since that date for both matters. This is the subject matter of the proceedings under HCCC 40/2022. At some stage the prosecution advised that there was sufficient evidence to proceed upon a charge of trafficking in dangerous drugs and she was committed to this court for trial under HCCC 39/2022 and for sentence upon the s9L offence. 

4.On 3 January 2023, the defendant formally pleaded guilty to failing to surrender to custody under HCCC 40/2022. She was re-arraigned today upon HCCC 39/2022 and has pleaded guilty.

5.The defendant was born and raised on the mainland. She was educated to Form 6. A Psychiatric report from Princess Margaret Hospital indicates that she had known substance abuse, in particular of ketamine, from her teens.  Her regular and increasing abuse of ketamine had caused serious damage to her kidneys and she was therefore known to the Hospital Authority and to Social Services. She had made several attempts to detox, none of which proved successful but she continued to receive support. She was married in her twenties but the husband was also a substance abuser, which did not help. She divorced in 2014, but thereafter entered into another relationship, also with someone who took drugs. By 2017, the defendant was known to have been abusing ICE for approximately two years. When she became pregnant in 2017, she continued to do so, which caused increased concern within social services for her own health and that of her unborn child. At the time of her daughter’s birth in January 2018, the defendant was clearly already seriously drug dependent. As a consequence, her daughter was the subject of a Care & Protection Order dated 8 February 2018 and formally committed to the care of her maternal grandmother with conditions. In 2018, the defendant obtained part time work with Yao Tian International Logistics Company earning between $6-7,000 per month and was able to maintain a relationship with her daughter whilst continuing to try to deal with her substance abuse. Unfortunately, she had difficulty quitting drugs and continued to abuse them.

6.The Care and Protection Order in respect of her daughter, required the defendant to attend a drug dependency programme. Thereafter, she attended the Sane Centre and received counselling as well as therapeutic rehabilitation, which continued throughout the period she was on bail under HCCC 39/2022. In May of 2019, when she failed to attend Court and for which an arrest warrant was issued, she was in fact in a residential detoxification programme at the Adult Women’s Rehabilitation Centre of the Hong Kong Drug Addiction Association. The Court was unaware of this. Throughout 2019 and up to her arrest in November 2020, the defendant had an allocated social worker, was seeking counselling and medical treatment and she was in employment, yet no effort seems to have been made to execute the warrant until she was arrested for gambling. If enquiries had been made, she could easily have been brought before the Court the very next day, when her current residence could be explained. She was a vulnerable adult in difficult circumstances and the system failed her.

7.The defendant is now 37 years of age and has one similar matter from 2012 on her criminal record when she received a probation order of 18 months. Given that she was 26 at the time, this must have been for a very small quantity of drugs. No doubt the probation order was passed to seek to address a known problem with both her addiction and her health. There was a 7 year gap between this offending and that earlier matter and so I will not enhance this sentence because of it.

8.As can unfortunately happen in criminal proceedings, the prosecution sought to serve an expert report upon the defence at a late stage which has left the defence at a disadvantage. Mr Ross, quite properly, saw the need to obtain an expert report upon consumption at the time of the CMH. He indicated that he would call a witness as to drug consumption on that occasion but did not make it clear that he would seek to rely upon an expert report in trial. As a consequence, no directions to that effect were given and Mr Arthur was not put on notice about the service of such a report, which the prosecution would seek to put before a jury. Unfortunately, bureaucracy being what it is, that report was only available in English by mid-April, some 3 months later. The police sought to give the defence advance notice of it but it was not served in proper form and was in English only. The report (still undated)  was finally served, along with a Chinese translation on 17 May 2023, just 3 working days before trial. That was unfortunate. The defence clearly had no time to take instructions. The defence submitted that leave to adduce the report under s65DA of the Criminal Procedure Ordinance, Cap 221, should not be given. Alternatively, Mr Arthur submitted that time should be given to the defence to seek a conference with the prosecution expert so as to avoid extra public expense and significant time in securing a defence expert. That was a wholly proper submission by Mr Arthur given the content of the report as it did not properly address the typical local Hong Kong consumption of this cocktail of drugs by a woman in the circumstances of the defendant and where it did seek to rely upon local data, that data was significantly different from other international data relied upon by the expert, which resulted in a conflict of information. That conflict would necessarily need to be considered during trial and would have lengthened it.

9.Mr Arthur did not wish a further adjournment of the trial given the lengthy period of time already served by the defendant and the likely sentence upon conviction. Enquiries were made to see if Dr Chong could be made available for a conference forthwith as he was due to give evidence in trial if the application of the prosecution was successful. This would have allowed the trial to continue. Unfortunately, Dr Chong has recently contacted Covid-19 and was unavailable both for conference and to give evidence. The prosecution were clearly unaware of this. Both parties were in a difficult position as a result. The Court was also reluctant to adjourn the matter to be listed once more for trial given the likely sentence upon conviction compared with time already served and therefore urged the parties to consider their positions. In the event, the prosecution were not prepared to accept a plea to possession but Mr Arthur indicated that his client would be prepared to offer a plea to trafficking upon the basis of a mixture of possession for self-consumption and limited non -commercial social distribution, which could be dealt with by holding a Newton Hearing. Mr Ross did not object to this course of action.

10.Mr Arthur, maintained that the majority of the drugs were for self-consumption and provided documentation to support the defendant’s significant history of dependence upon dangerous drugs, her resultant health issues and the source of her income. A Newton Hearing was held for the Court to properly assess this claim and for the prosecution to test it. Having heard from the defendant and examined the supporting documentation, I am satisfied that the defendant was going to consume a substantial quantity of the drugs found in her possession in a combination as suggested in the expert report. I accept that the nimetazepam and cocaine would have been consumed wholly by the defendant and that up to 2g of Ice would have been provided to friends for no financial gain as part of social consumption, including to her boyfriend, who is a known drug addict. Given the social and limited nature of supply to at least one other which is the basis of my findings, I am prepared to deal with her as if she possessed 11.71g for her own consumption along with the cocaine and traces of nimetazepam, and the remaining 2g as if it was available to traffic in socially without financial gain. 

11.As for the issue of possession for self-consumption as was said by McWalters JA in HKSAR v Ngai Ho Ting [2013] 4 HKC 547, the exact discount a court should give for self-consumption is fact sensitive and will vary from case to case. It does not lend itself to strict mathematical precision.

12.The defendant has always cooperated with the police and indicated she would plead guilty to possession from the start. The plea upon Count One, albeit late in the day, is a compromise given her current incarceration and the difficulties facing the prosecution. This may very well have been resolved if the prosecution had its evidence in place at any earlier stage and it should have done so, given that the defence was at all times one of self-consumption. The defendant should not be left at a disadvantage because of the dilatoriness of the prosecution. Although I accept they had no knowledge of the particular circumstances of the defendant at that stage. The current plea represents a sensible and fair resolution as between the parties and the interests of justice. As such, in all the circumstances of the chronology of proceedings under HCCC 39/2022, none of which can be laid at the door of the defendant, and having heard both counsel upon the point, I find she is entitled to her full one third discount especially as she had every expectation until one week before trial that she had an arguable case and still had an arguable case as the trial would have proceeded without Dr Chong.  Accordingly, on Count One of HCCC 39/2022, the defendant will be sentenced to 930 days which reflects time served to allow for her immediate release to date.

13.Under Count One of HCCC 40/2022, the defendant has already forfeited her 5,000 cash bail. She was in a residential drug rehabilitation facility at the time she failed to attend court and given her substance abuse it is unfortunate that proper enquiries were not made earlier to secure her attendance at court. She was under the supervision of a significant number of health care professionals in the intervening period and could have been found without difficulty. But she did not of her own volition thereafter seek to deal with her outstanding criminal proceedings because of the precarious position she found herself in vis-a-vis access to her daughter under the Care & Protection Order.   A sentence of imprisonment of 6 weeks would be appropriate in all the circumstances of the case, for which she will receive a discount of one third for her early plea making 4 weeks. This sentence will be served wholly concurrently with her sentence upon Count One under HCCC 39/2022 which I intend to give effect to her immediate release.

14.The defendant is to be released forthwith and I wish to have confirmation that will be given effect before close of proceedings today.

15.I am grateful to counsel for their assistance in this matter.

16.I make an order in terms of the application for disposal of exhibits.

Mr Philip Ross, counsel-on-fiat, for HKSAR

Mr Michael Arthur, instructed by Tangs Solicitors, assigned by Director of Legal Aid, for the defendant