She pleaded guilty to both counts and was duly convicted after she admitted to the Summary of Facts in support of the charges.
The Admitted Facts disclose that the defendant was intercepted by the police on 5 January 2014 in the vicinity of the Ground Floor of Kwai Hin House, Lower Ngau Tau Kok Estate. She was then in the company of another female. The police conducted a search on her and, inside the pocket of her coat, the police found a plastic wrapper containing what was later confirmed to be 1.92 grammes of a crystalline solid containing 1.90 grammes of methamphetamine hydrochloride, commonly known as "Ice".
Under caution, the defendant claimed the "Ice" was for her own consumption. That supports the 1st count.
Using a key found on the defendant, the police gained access to Room 3717 of Kwai Hin House. Inside the premises, the police found what was later confirmed to be 22.66 grammes of a crystalline solid containing 22.5 grammes of "Ice", 11.45 grammes of a powder containing 4.31 grammes of ketamine, and 0.03 of a gramme of nimetazepam inside a handbag hung on the wall. Inside that handbag, police also found a number of plastic bags. A set of electronic scales was found inside a drawer.
Under caution, the defendant claimed all the dangerous drugs were for her own consumption. That supported Count 2.
The "Ice" seized inside the premises had an estimated retail value of $9,505, while the "Ice" seized from her person was estimated to have a value of $819. The ketamine and the nimetazepam had a retail value of $1,700. So the total value of all the dangerous drugs was around $12,208.
During a video-recorded interview, the defendant said the "Ice" found inside her pocket was for her own consumption; she bought it a few days ago at a price of $300. As to the dangerous drugs found inside the premises, the defendant claimed that they were all for her own consumption. The set of scales were used to weigh the dangerous drugs to ensure she had been given the correct weight and the plastic bags were for packaging of the dangerous drug so that she knew how much she was consuming.
She said she was in receipt of CSSA in the sum of around $3,000 per month.
Before me, the defendant formally admitted that she was trafficking in those dangerous drugs found inside the premises, that is those particular "Ice" in Count 2.
The Defendant’s Background and Mitigation
The defendant is 25 years old, born in the mainland and came to live in Hong Kong in year 2000. She had no previous conviction. Mr Tracy, counsel for the defendant, informed me that the defendant formed a relationship with a married man when she was 17 and later bore a child with that man. The child is now 4 years old. The man was not happy about the pregnancy and physically abused the defendant both while she was pregnant and after she had given birth. The man also left her to return to his wife.
The defendant repeatedly inflicted injuries upon herself and was hospitalised on many occasions. The child was taken away from her and looked after by foster parents. The defendant was not allowed to see the child.
I was also informed that the defendant was under the care of a psychiatrist since year 2009. The defendant was unemployed at the time of the offence and was a recipient of CSSA in the monthly sum of $4040. The defendant claimed to have started taking "Ice" for six years.
Those were what defence counsel told me at the first time of mitigation. So in view of what Mr Tracy told me, I adjourned the case so that reports could be obtained from the social worker who was responsible for the defendant’s case and from the psychiatrist, a Dr Wong.
When the hearing resumed on 5 September, a background report prepared by the Probation Officer and a psychiatric report by the visiting psychiatrist at the Siu Lam Psychiatric Centre were ready but the psychiatric report from the United Christian Hospital was not available. I therefore adjourned the matter until today, 30 September.
Firstly, the background report. According to the report, the defendant’s father passed away in 1998 and the defendant came to live in Hong Kong in year 2000, after the father’s death. She was the youngest in the family. The defendant’s mother admitted there was insufficient supervision on the defendant. The relationship between her and her older sibling was distant. The defendant moved out from home when she was 16.
In 2007, when she was 18, she cohabited with a man. That cohabitation ended and the defendant lived with another man, that is a Mr Wong, in year 2008. She gave birth to her daughter in November 2009. This second cohabitation also ended. The defendant told the Probation Officer that she was physically abused by Mr Wong. The defendant knew Mr Wong was married with a son but she kept on with the relationship as Mr Wong was supporting her. Even after Mr Wong and his wife were divorced, the defendant had frequent arguments with Mr Wong.
The defendant started to receive counselling from a social worker, Miss Ng. According to Miss Ng, the defendant had previous self-harm behaviour and depressive symptoms. The defendant’s daughter was therefore arranged to live with a foster family. The defendant was receiving outpatient treatment from the Yung Fung Shee Memorial Centre since year 2009.
The defendant admitted her wrongdoing to the Probation Officer and admitted having played with cocaine since she was studying form 2. She resorted to drug taking to relieve the stress from her relationship with Mr Wong.
I have a psychiatric report prepared by Dr Chow, a visiting psychiatrist of the Siu Lam Psychiatric Centre for my perusal. According to the information provided by the defendant, Dr Wong mentioned in the report that the defendant started to take amphetamine when she was 16 and became a regular user at 20, taking about 0.8 of a gramme per day. She only abstained from drug-taking during her pregnancy and she resumed soon afterwards. She also abused benzodiazepine and ketamine and had tried cannabis and cocaine.
About her psychiatric history, the defendant was first known to the Mental Health Services in 2007 when she was referred to the psychiatric outpatient clinic at the United Christian Hospital for emotional problems due to the relationship issue with her boyfriend. She had repeated, deliberate self-harm behaviour and was admitted to the Kowloon Hospital in 2008. She was diagnosed to have acute stress reaction and emotional unstable personality disorder.
The defendant admitted she conducted the self-harm behaviour in the presence of the boyfriend precipitated by conflicts over their relationship but denied that she had suicidal or violent behaviour. She also denied having a psychotic experience. No paranoid belief or psychotic symptom was observed.
Dr Chow was of the opinion that the defendant suffered from amphetamine dependence and poly-substance abuse. She also had poor stress coping abilities. Her unstable emotion might partly relate to her amphetamine use but could also relate to her poor stress coping skill. The defendant’s current mental condition is stable. She does not require any psychiatric inpatient treatment.
It should be noted that although the defendant told Dr Chow that all the dangerous drugs involved in this case were for her self-consumption, she admitted through counsel that that was untrue as she was trying to get a favourable report from Dr Chow.
I also have another medical report on the defendant from the United Christian Hospital. The Medical Officer, Dr Wong, mentioned that the defendant started to seek psychiatric services at UCH on 10 December 2007. She was presenting with depressive mood and increased irritability. She had frequent conflict with her boyfriend, a married man. She exhibited temper tantrum and self-harm behaviour in the presence of the boyfriend.
Dr Wong also said that the defendant engaged in substance abuse including amphetamine and marijuana. The psychiatric diagnosis was adjustment disorder and substance abuse. She was last seen on 29 July 2014. No psychotic or depressive features were elicited during mental state examination.
So prior to further mitigation advanced by Mr Tracy today, I have indicated to him and the defendant how I was going to deal with this matter. Mr Tracy emphasised on the unfortunate background of the defendant and the fact that this is the first time she had committed any offence. Mr Tracy asked me to pass a sentence as close to 7 years as possible.
I will deal with the 1st count possession of dangerous drugs first. For the offence of possession of dangerous drug, the starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his or her possession should be in the range of 12 to 18 months. I am satisfied that the defendant was a bona fide user of "Ice" and the quantity would normally be in her possession.
Having considered the circumstances of the offence and the defendant’s background, I am of the view that a starting point of 12 months is appropriate for Count 1.
I will now deal with the more serious offence of trafficking in dangerous drugs. A person convicted of this offence on indictment is liable to a fine of HK$5 million and life imprisonment. There is a mixture of dangerous drugs here, "Ice", ketamine and nimetazepam. So for the purpose of arriving at the appropriate starting point I will disregard the rather insignificant quantity of nimetazepam here. I will look at, separately, the appropriate starting point for "Ice" and ketamine. I should say the starting band rather than the starting point, the appropriate band for each drug.
So for "Ice", it should be noted that the Court of Appeal has set down new guidelines for trafficking in "Ice" on 9 June this year in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. However, this offence was committed before the date of that judgment so the old guidelines set down in AG v Ching Kwok Hung [1991] 2 HKLR 125 are still applicable. The quantity of "Ice" involved is 22.5 grammes, so that is between 10 to 70 grammes. The appropriate band is 7 to 10 years.
For ketamine, the ketamine involved here is 4.31 grammes. Looking at the authority, that is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, 2 to 4 years for over 1 gramme to 10 grammes of ketamine, the appropriate starting point would be somewhere around 2 to 3 years.
Having considered the two different approaches in dealing with a mixture of drugs, the individual or combined, I think a more appropriate and fairer to the defendant method is to adopt the combined approach, and bearing in mind that "Ice" is the more serious and potential dangerous drug of the two.
In my view, the quantity of ketamine, 4.31 grammes, is not significant here and would not have enhanced the sentence appropriate for the trafficking of "Ice". In other words, had all the narcotics been "Ice" here, the starting point for the trafficking of 26.81 grammes of "Ice" would not be much different from trafficking 22.5 grammes of "Ice", whereas if I adopt an individual approach, the resulting starting point would be much higher.
Having considered all the circumstances of the offence, the defendant’s personal, rather unfortunate, background and the fact that this is the first time she had committed any offence, I am of the view that an appropriate starting point for the dangerous drugs in Count 2 is one of 7½ years.
The defendant has pleaded guilty before me and I will give her the full one-third discount. After the discount, the sentences for the two counts are as follows: Count 1 is 8 months’ imprisonment; Count 2 is 5 years’ imprisonment.
I now have to consider the totality. I bear in mind that had both counts been trafficking in dangerous drugs, I would have grouped the dangerous drugs together, that is grouping Count 1 and Count 2 together, to arrive at an overall starting point. The amount of 1.9 grammes of "Ice" in Count 1 would not have made any difference to the starting point and I would have ordered the sentences for both counts to run concurrently.
The defendant stands convicted of possession of dangerous drugs for Count 1 which is a lesser offence then trafficking in dangerous drugs. I will order both sentences to run concurrently. I would add here that apart from the one-third discount, I do not see any other basis for further reducing the sentence.
The actual sentence now for Count 1, 8 months’ imprisonment; for Count 2, 5 years’ imprisonment to run concurrently with the 8 months imposed on Count 1, making a total of 5 years’ imprisonment.