HKSAR v. Hui Suet Ying

HCCC 240/2023

[2024] HKCFI 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 240 OF 2023

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

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COURT: The defendant pleaded guilty at the Eastern Magistracy on 17 August 2023 to the offence of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. The particulars of the offence were that the defendant, on 28 October 2021, at Room 510, Nathan Hotel, No. 38 Nathan Road, Kowloon, (“Room 510”), unlawfully trafficked in dangerous drugs, namely, 436 grammes of a crystalline solid containing 151 grammes of methamphetamine and 85.2 grammes of a solid containing 20.34 grammes of methamphetamine, (commonly known as ‘Ice’). This afternoon, she confirmed her plea and accepted the Summary of Facts.

The Brief Facts

The facts giving rise to the offence are that at around 1407 hours on 28 October 2021, during an anti-narcotics operation, the police entered Room 510 and found no one there. Later at around 1413 hours, the defendant opened the door with a key card and walked in. Upon search, the police found inside a safe (with the passcode provided by the defendant)  in Room 510: 436 grammes of a crystalline solid containing 151 grammes of methamphetamine, I will call it ‘Ice’ in a Ziploc bag; three opened plastic packets printed with words “Sweet Times” separately contained 26.6 grammes of a solid containing 6.68 grammes of ‘Ice’; 27.8 grammes of a solid containing 5.42 grammes of ‘Ice’; 30.8 grammes of a solid containing 8.24 grammes of ‘Ice’; three resealable plastic bags, one plastic bag containing six plastic packets printed with the words “Sweet Times”, and an electronic scale.

The government chemist examined and certified the dangerous drugs seized were 151 grammes of ‘Ice’ and 20.34 grammes of ‘Ice’.

The estimated street value of the drugs was about $292,914.40.

Under arrest and caution, the defendant said that the ‘Ice’ which the police found in the safe was purchased by her from someone for $5,000 and she intended to sell it for money. Later, in the recorded interview, the defendant said she met a male named ‘Ah Ming’ in Cheung Sha Wan to purchase ‘Ice’, then she took a taxi to the hotel, which she had rented for about one week. She packaged the ‘Ice’ into three bags, each weighing about 1 ounce, that is about 28 grammes, and resealed the bag using a lighter. The defendant admitted that she would sell the ‘Ice’ to others for HK$10,000 per bag through referral by friends. The defendant also stated in the interview that she has no habit of taking any dangerous drugs.

Hotel records showed that the defendant initially rented the room from 20 October 2021 to 23 October 2021. She extended her stay a number of times to 29 October 2021.

She now accepts and admits that at all material times, that she unlawfully trafficked in the drugs seized in the room.

The Defendant’s Background and Mitigation

The defendant is 26 years old. She was 24 at the time of her arrest. She received education up to Form 2. She previously worked as an attendant at KFC and other restaurants. Prior to her arrest, she was living in a public housing estate with her grandmother, her 43-year-old mother and her 3-year-old daughter. Her 2-year-old son was being placed with a foster family. She has no previous criminal records.

I have read the letters written by the defendant, her family members, the kindergarten principal of the defendant’s daughter and a pastor of Christian Prison Pastoral Association, all pleading for a lenient sentence.

This is a sad case. The defendant came from a single parent family. She was primarily raised by her grandmother, her father died in 2014 due to illness. She only finished Form 2 and left school in 2012 to work. She said she wrongly entered into a relationship with a man and later had a complete abortion, and due to foolishness and increased pressures in life, she developed a drug habit and strayed from the straight path. She referred to this matter in her letter written to the court. The defendant said she is determined to reform and turn a new leaf with the support of her family. The defendant also provided through her counsel a certificate showing she has satisfactorily completed a Food Hygiene Certificate for a Hygiene Manager Course in June 2023. She concludes her letter by seeking leniency and promising in the future she would abide by the law. The letter provides me with a better understanding as to why the defendant entered the drug world.

The grandmother who is now 70 years old is taking care of the defendant’s 5-year-old daughter. The grandmother also had her own emotional issues due to the tragic death of her son.

The principal of her daughter’s school said she had known the defendant for nearly three years and has noticed that the defendant is deeply remorseful and this incident had caused her mental anguish.

The pastor also stated that the defendant, having witnessed her elder grandmother’s unwavering support, is filled with deep remorse, and is determined to change and cut off her ties with the bad elements. The pastor said she is currently working hard to acquire new knowledge and self-discipline.

The Issue of Self-consumption

In mitigation, Mr Wong Po-wing for the defendant informs me that the defendant has been addicted to ‘Ice’ since 2011 to 2012. He explains that she would usually consume the ‘Ice’ by using an ‘Ice’ bottle. The bottle was placed on top of the safe inside the hotel room. She had used this bottle to take ‘Ice’ before the police came.

Mr Wong submits that the defendant intended to consume about 100 grammes of the ‘Ice’ from the 436 grammes in the Ziploc plastic bag for her own consumption, which amounts to 19.18 per cent of the total weight of 521.2 grammes of crystalline solids found.

In raising the issue of self-consumption, I have asked Mr Wong if he would be providing the court with credible and reliable information or evidence in support of his

submission. He informed me that he had discussed the matter with the defendant and had clear instructions she would not give evidence or call evidence on the issue.

In such circumstances, the defendant, relying solely on the submission of counsel, claimed that 100 grammes of the 436 grammes of a crystalline solid was intended for her own consumption. Mr Wong submits:

(1)  The defendant has a prior history of consuming drugs since she was 13 to 14 years old. She started taking ketamine and later took ‘Ice’ and became addicted to it. Mr Wong drew the court’s attention to the positive result of drugs of the defendant’s urine test conducted shortly after her arrest and medical reports confirming her addiction.

(a)  According to a medical report of the Gynaecology Clinic issued by Dr Cheng of Queen Mary Hospital dated 20 June 2012 (the defendant was 14 years old at the time), it shows that she had been taking ketamine for half a year in 2011 and had been taking ‘Ice’ in around late 2011 to June 2012.

(b)  The Rainbow Lutheran Centre confirmed that she had been receiving their drug counselling service from February 2019 to May 2021, and that she disclosed her struggle in taking drugs and other problems faced by her. Rapid urine test result dated 22 March 2019 showed a positive result to ‘Ice’.

(c)  The urine sample collected on 31 October 2021, three days after the defendant’s arrest, yielded positive result for amphetamine (see the memo issued on 7 November by Tai Lam Correctional Institution).

I am prepared to accept that the defendant had an addiction to ‘Ice’ prior to and at the time of her arrest.

When the defendant was arrested on 28 October 2021, there is no evidence before me as to whether there are items for the consumption of ‘Ice’ found in the hotel room at the time of arrest.

Mr Wong also said the defendant took an average of 1 to 2 grammes of ‘Ice’ a day. For reasons explained below, I am not prepared to accept this assertion made by Mr Wong on behalf of the defendant.

The defendant in her cautioned interview claimed that she intended to sell the drugs in question to others for 10,000 per bag through referral by friends and she had no habit of taking any dangerous drugs.

The Guiding Principles on Self-consumption

The guiding principles for a sentencing court when addressing the issue of self-consumption are set out in the Court of Appeal decision of HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69 at paragraph 34. In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. There are a number of factors I have to take into consideration and they are set out in paragraph 34(3)  of the judgment.

The Court of Appeal in HKSAR v Tsoi Man Chun, CACC 414/2015 (27 March 2017, unreported)  had analysed and discussed the following guiding principle on self-consumption in Wong Suet Hau at paragraph 54:

“[A]n offender is only entitled to a discount for self-consumption if the judge finds that “all or a significant proportion” of the drugs were to be consumed by him. If he does not surmount this hurdle, then he is not entitled to any discount.”

As to what is a significant proportion, in Wong Suet Hau, it was said to be of such a proportion that it may well make a difference to sentence.

In determining whether the self-consumption claim is true, as I said, the normal rules for determining factual basis for sentence apply.

Where it is accepted by the judge that a significant proportion of the drugs were for the defendant’s own consumption, that it will fall on the court to assess the amount of discount that it should award the defendant from the adopted starting point. It is unnecessary for the sentencing judge to specify the relative amounts or proportions except in the broadest of terms.

The credibility of the claim must be on a proper factual and evidential basis. That is HKSAR v Choi Chun Wo [2018] 5 HKLRD 717 at paragraph 37.

And as to how a sentencing court should resolve a claim of self-consumption, it was set out in Tsoi Man Chun, at paragraphs 58 to 59.

The critical issue arising from the Court of Appeal’s decision on self-consumption is the need for the claim of self-consumption to be proven to the sentencing court’s satisfaction. As stated in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at paragraph 54:

“There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that “a significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice. The prosecution also has an important role to play in assisting the court in resolving such a claim. If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is appropriately informed of it. It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form.”

Whilst I am prepared to accept that the defendant had an addiction to ‘Ice’ and that she was likely to receive or purchase some ‘Ice’ for her habit, however, there is no evidence, nor any credible or reliable information or material, that substantiated 100 grammes, that is about 20 per cent of the quantity of mixtures found, were for her own consumption. I am not prepared to accept that a significant proportion of the drugs were for that purpose, and definitely not as high as suggested by the defence. From all the facts and circumstances, I am satisfied that the defendant was trafficking in drugs.

First, as to how the drugs were wrapped and packaged, and how these drugs have been discovered in a hotel room, the defendant said under caution that she purchased the drugs intending to sell it for money and later in her video-recorded interview, she said she packaged the ‘Ice’ into three bags each weighing 28 grammes and would sell the ‘Ice’ to others for HK$10,000 per bag through referral by friends. As to why the defendant made the response that she has no habit of taking dangerous drugs to the police, Mr Wong submits at paragraph 11 of his written submission that the defendant did not tell the police because of her nervousness and that she was in a panic, that the defendant also remembered she had an ‘Ice’ bottle used for taking ‘Ice’ on top of the safe at the hotel room and that she had used the bottle to take ‘Ice’ before the police came. However, these are mere assertions. The defendant did not testify. Without any credible evidence before me, I do not accept the defendant’s claim that a significant proportion of the drugs was for self-consumption.

Second, the positive urine test result and the medical report showing addiction to ‘Ice’ per se were not determinative of the claim for self-consumption, albeit it was one of the factors to be taken into account by the court when deciding whether any significant portion or any portion of the drugs in question might be for the defendant’s own consumption.

The fact that the defendant had consumed the same type of drugs at the time of arrest is insufficient to support a claim of self-consumption in mitigation. There must be evidence that a portion of the drugs which formed the subject matter of the present trafficking charge was for her own self-consumption HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872 at paragraph 23.

As I said I accept there is evidence in support of her claim she was a user of amphetamine, but I am not satisfied that all of the 100 grammes as claimed by the defence was for her own use. The prosecution has also pointed out that such an amount would support her addiction of 70 days to over a year, based on what the Court of Appeal has accepted in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 at paragraphs 26 to 27. The average daily consumption of ‘Ice’ of infrequent users was 0.05 grammes to 0.1 grammes per day and 0.1 to 0.5 grammes per day for regular users.

Thirdly, according to the defendant’s antecedent statement, she was unemployed at the time of arrest. She had previously worked as an attendant at KFC, other western restaurants and Dai Pai Dong. There is no credible information before me to support that she has sufficient financial means to purchase 100 grammes of a crystalline solid for self-consumption, even taking into account the low purity level of ‘Ice’ involved in this case. The percentage purity of ‘Ice’ in this case is found to be approximately 33 per cent, significantly lower than the monthly average percentage purity of methamphetamine sold at street level in October 2021.

But I have been told by the defence and the prosecution that the agreed estimated street value of the methamphetamine seized in the present case as shown in the Summary of Facts is $292,414, and this value has taken into account the low level of purity of ‘Ice’ in the present case.

I have made known my preliminary views, the above preliminary views to the defence, Mr Wong confirmed the defendant would not be giving evidence in the witness box to support her claim for self-consumption.

Notwithstanding this finding, I have to take into account that even possession of dangerous drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others. Moreover, my assessment in the present case is that the latent risk for whatever quantity of drugs the defendant had intended to reserve for self-consumption was high.

Having taken into account the above factors and having regard to the Court of Appeal decision in Cheung Wai Man whilst a discount for this reason should normally only be given when a significant proportion of the drugs was intended for self-consumption, I am persuaded to exercise my discretion to give a slight adjustment of 5 months from the starting point.

Sentencing in this case

Now it is well-established that trafficking in dangerous drugs is a very serious offence. In sentencing, I shall follow the six-step approach enunciated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. Macrae VP reaffirmed that for this offence, personal circumstances were of far less importance than the sentencing principle of denunciation, deterrence and punishment.

The tariffs for trafficking in ‘Ice’ were laid down in the case of Tam Yi Chun. For trafficking between 70 and 300 grammes of ‘Ice’, a term of imprisonment of 11 to 15 years is called for.

Having considered the amount of ‘Ice’ involved, the starting point based on mathematical calculation is that of 12 year and 9 months.

However, according to the defendant’s own admission, she is the actual or direct trafficker, and not a mere courier or storekeeper. In Herry Jane Yusuph, Macrae VP made it very clear at paragraph 61 that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper. He said:

“...the defendant who can be shown by admission, or by direct or circumstantial evidence, to be dealing in dangerous drugs to others, sometimes referred to as actual (or direct)  trafficking, is not a courier or storekeeper, and is in a more serious position.”

And further at paragraph 64:

“...actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a defendant’s purpose cannot be proved or explained.”

Taking into account the defendant’s own admission, the role and culpability of the defendant is that of a person who is involved in direct distribution of drugs to the consumer, I must depart from the mathematically calculated place within the relevant band, that is 12 years and 9 months, and adopt a higher starting point. I have also taken into account Mr Wong’s submission that the defendant revealed this matter through her cooperation with the police upon her arrest, I therefore adopt a starting point of 13 years.

As stated above, I am not satisfied that a significant proportion of the ‘Ice’ was intended to be or would be consumed by the defendant. Although a discount, as I said, should normally only be given when a significant portion of the drugs was intended for self-consumption, I will exercise my discretion to make a downward adjustment of 5 months from the starting point.

There is no aggravating factor in the present case.

As for mitigating factors, the real mitigating factor is the defendant’s timely plea of guilty. She is entitled to her one-third discount. The notional sentence after trial is 13 years’ imprisonment, discounted by 5 months for the self-consumption claim, and once discounted by one-third, becomes a sentence of 8 years 4 months’ imprisonment (after rounding it down).

The sixth and final step is to stand back and look at the overall sentence in order to ensure it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.

From all the letters written to the court, there is no doubt that this defendant is in need of encouragement to rehabilitate herself and that whatever sentence I impose must contain a motivating element to assist her to do so. Tailoring the sentence to the circumstances of this offender, without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced, and ultimately just sentence for this defendant is 8 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted.

I am of the view that the ultimate sentence of 8 years’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.

The final sentence I would impose on the defendant is one of 8 years’ imprisonment.