A HCCC 83/2018 A
[2018] HKCFI 2259
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 83 OF 2018
D D
-----------------
E HKSAR E
v
F F
WONG Wing-chi (黃穎芝)
G G
-----------------
H H
Before: DHCJ D Yau
Date: 14 September 2018 at 9.58 am
I Present: Ms Human Lam, SPP (Ag) of the Department of Justice, I
for HKSAR
Mr John Hemmings, instructed by Wong & Co, assigned by
J DLA, for the accused J
Offence: Trafficking in dangerous drugs (販運危險藥物)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M The defendant pleaded guilty before a Magistrate on 5 March M
2018 to two counts of Trafficking in Dangerous Drugs and was
N committed to the Court of First Instance for sentence, N
pursuant to section 81B of the Magistrates Ordinance,
Cap. 227.
O O
Particulars of the 1st Count are that she, on 24 January
2017, at Harbour Plaza Resort, City Tower 2, No 18, Tin Yan
P Road, Tin Shui Wai, unlawfully trafficked in 1.39 grammes of P
a crystalline solid which contained 1.28 grammes of
Q methamphetamine hydrochloride, commonly known as ‘ice’. Q
Particulars of the 2nd Count are that she, on the same day
R at Room 2856 of the same address, together with one Lau R
Sze-man unlawfully trafficked in a 67.26 grammes of a
crystalline solid which contained 60.45 grammes of
S S
methamphetamine, and 0.12 grammes of a solid which contained
0.09 grammes of cocaine.
T T
The defendant confirmed her pleas before me and admitted to
the contents of the Summary of Facts, read out to her.
U U
CRT36/14.9.2018/CP 1 HCCC 83/2018(1)/Sentence
V V
A Summary of Facts A
The premises mentioned in the particulars of the two counts
B is a hotel. The said Lau Sze-man, herein after as “Lau”, B
named in Count 2 was intercepted by police officers at the
front desk of the lobby on the charge date. The defendant
C C
was stopped at the same time when she was leaving the hotel.
D The defendant’s handbag was searched. One plastic bag D
containing the ‘ice’ in Count 1 and a hotel room key card
were found. The defendant was arrested and cautioned. She
E had nothing to say. Lau was also searched and a hotel room E
key card was found on her.
F F
The two were brought to Room 2856 of the hotel. The room
door was opened with the key card found on the defendant.
G A search was conducted and two inhaling devices were found G
on the coffee table inside the room. One of them had
32 millilitres of a liquid containing methamphetamine.
H H
And electronic scale, 232 empty transparent re-sealable
I
plastic bags, 83 straws and a roll of aluminium foil were I
found on top of a set of wooden drawers.
J The drugs in relation to Count 2 were found in 10 different J
plastic bags. Four of them were from inside a paper box and
that was stuck between the cushions of the sofa. The rest
K were found inside a plastic box concealed by a rolled-up K
towel and placed on the upper rack of a shelf in the
L bathroom. L
Hotel record confirmed that the defendant and Lau had been
M staying at the hotel on and off since December 2016. They M
changed rooms frequently, so much so that the hotel manager
started to pay attention to them. Immediately before their
N arrest, the two had been staying at the hotel since N
8 January 2017 and had changed room six times.
O O
Hotel closed circuit television footages show a non-ethnic
Chinese male taking the lift up to the 28th floor at 2.39 pm
P on the day. The defendant went down to the lobby at 4.03 P
pm, headed to the front desk and then went back up to the
28th floor. At 5.54 pm, the defendant, Lau and the man went
Q Q
down to the ground floor from the 28th floor. Two minutes
later, the defendant and the man left the hotel together,
R while Lau went to the front desk. The defendant and Lau R
were arrested shortly afterwards.
S The estimated street value of the seized drugs was $19,835. S
The last paragraph of the Summary of Facts, to which the
T T
defendant had admitted, states that the defendant now admits
U U
CRT36/14.9.2018/CP 2 HCCC 83/2018(1)/Sentence
V V
A and accepts that she possessed the dangerous drugs seized, A
both from her handbag and Room 2856, for the purpose of
unlawful trafficking.
B B
Previous convictions
C C
The defendant has nine convictions from four court
appearances. Six of those convictions are drug-related.
D Four were for possession of dangerous drugs, one for D
possession of equipment intended for smoking dangerous
drugs; and one for possession of a Part I poison.
E E
Her last four convictions were all dated 19 January 2016,
when she was sentenced to receive treatment at the Drug
F F
Addiction Treatment centre.
G Mitigation G
The defendant is 30 years old. She has a nine year old
H daughter and a six year old son. She received education in H
Hong Kong up to Secondary 3 level. The defendant had worked
I
as a hair stylist, makeup artist, salesperson and waitress I
before. She became a housewife in 2009.
J Letters in mitigation from the defendant herself, her J
daughter, elder sister, her pastor were submitted, all
seeking leniency.
K K
The defendant has been making good use of her time while in
L custody and has obtained some impressive grades in both L
English and Religious studies.
M In mitigation, the court was told that the defendant is M
heavily addicted to ‘ice’, consuming between 2 to 3 grammes
a day. Counsel was instructed to inform the court that up
N to 25 per cent of the total ‘ice’ was for her own use. N
O Sentencing guidelines and approaches O
The sentencing guidelines for trafficking in ‘ice’ were laid
P down in the case of HKSAR v Tam Yi-chun, CACC 534/2011. P
Subject to enhancement for aggravating factors and reduction
for mitigating factors, the tariff to be imposed after trial
Q Q
of trafficking between 10 and 70 grammes of ‘ice’ is 7 to 11
years’ imprisonment.
R R
Given that the drugs in Count 1 were found on the defendant
as she was leaving the hotel after having come down from the
S 28th floor, which is where the drugs in Count 2 were found S
and was where the defendant had been staying, I find that
the proper sentencing approach is to combine the quantity of
T T
all the ‘ice’ seized when applying the guideline sentence
and impose a concurrent sentence for both counts. Both
U U
CRT36/14.9.2018/CP 3 HCCC 83/2018(1)/Sentence
V V
A counsel for the prosecution and defence, agreed with this A
approach.
B I find that, since the quantity of cocaine in Count 2 is so B
small, if converted, its sentence would have no impact on
the sentence for the ‘ice’. For that reason, I will
C C
disregard the cocaine in sentencing the defendant on
Count 2. Again, both counsel agreed with this approach.
D D
The starting point
E A strict mathematical approach to the guideline tariff would E
lead to a starting point of 125 months’ imprisonment for
61.73 grammes of ‘ice’. This is the starting point I adopt.
F F
G Aggravating factor G
In relation to Count 2, a possible aggravating factor is
H that the offence was committed jointly with Lau. However, H
in Lau’s own trial, her count was amended from trafficking
I
jointly with the present defendant and others, to that of I
conspiring to traffic with them. Lau was acquitted
unanimously by the jury, after trial.
J J
I inquired with Ms Lam for the prosecution, as to whether
the defendant should be sentenced on the basis that she had
K committed the offence with Lau, or since Lau had been K
acquitted by the jury on essentially the same factual basis
L in a similar count, this court should pay due regard to the L
jury’s finding and not sentence the defendant on the basis
that she had committed Count 2 jointly with Lau.
M M
Ms Lam, very fairly, accepted that the defendant should not
be sentenced on that basis. However, Ms Lam pointed out
N that, the defendant gave evidence in court that Lau Sze-man N
never conspired with anyone to traffic in the drugs in the
O hotel room. The defendant’s own words were, and I quote, O
“The one who conspired with Ma Yik was me”.
P On this possible aggravating factor, I note first of all P
that in the particulars of Count 2, only Lau has been named
as an accomplice. There is no mention of Ma Yik or any other
Q Q
unknown accomplices. Yet, in Lau’s case, her conspiracy
charge particulars did include those co-conspirators.
R R
Furthermore, I find that it would not be fair to the
defendant if she is sentenced on the basis of her evidence
S given in Lau’s trial, without having given her a proper S
warning when she gave evidence in the other trial, that her
sentence might be affected. The defendant could have given
T T
evidence that she herself was trafficking in the drugs and
not Lau. She could have chosen not to answer any questions
U U
CRT36/14.9.2018/CP 4 HCCC 83/2018(1)/Sentence
V V
A that might affect her sentence, and her evidence might still A
be sufficient to exonerate Lau.
B I, therefore, find that under the circumstances, the B
defendant should not be sentenced on the basis that she had
committed Count 2 jointly with Lau, and neither should she
C C
be sentenced on the basis of her testimony in Lau’s trial,
about her conspiring with Ma Yik to traffic in those drugs,
D for the reasons given. D
Mitigating factors
E E
As mentioned above, it was originally put forward that 25
per cent of the ‘ice’ were for her self-consumption.
F F
However, because of the evidence given by the defendant in
G the trial of Lau concerning the same drugs found in the G
room, I indicated to defence counsel, Mr Hemmings, that I
was not prepared to accept, without further evidence, that
H up to 25 per cent of the ‘ice’ was for self-consumption. H
I
The case was adjourned, after my indication, so that I
transcripts of the defendant’s evidence could be made
available to counsel. At the resumed hearing, Mr Hemmings
J told the court that the defendant had decided not to pursue J
a discount based on self-consumption having had the
opportunity to read the transcripts.
K K
Be that as it may, for the sake of completeness, I find on
L the basis that the defendant had never mentioned in her L
testimony in Lau’s trial, not in any of her previous
interviews with the police, nor in her Summary of Facts,
M that any of the drugs in the hotel room were for her M
self-consumption, there would have been insufficient
evidence to support the defendant’s original claim that up
N to 25 per cent of the drugs were for self-consumption, had N
that been pursued.
O O
I have further considered whether the facts that the
defendant was a drug addict and that she said in Lau’s
P trial, that the drugs found in her handbag in Count 1 were P
left-overs from her own use and to be shared with her
friends, should cause her to be entitled to a discount for
Q Q
self-consumption.
R My decision is that they should not. The reason being that R
the quantity of the ‘ice’ involved in Count 1 is 1.28
grammes. Even if they were all to be for the defendant’s
S self-consumption, it would only be 2 per cent of the total S
narcotic contents. This cannot, even remotely, be regarded
as a ‘significant proportion’. As such, I would not have
T T
granted the defendant any discount on the basis of
self-consumption in relation to Count 1 either.
U U
CRT36/14.9.2018/CP 5 HCCC 83/2018(1)/Sentence
V V
A The only mitigating factor is the defendant’s timely pleas A
of guilty. For that, she is entitled to the full one-third
discount, resulting in a sentence of 83 months’
B imprisonment. B
Totality
C C
The defendant is sentenced to 83 months’ imprisonment on
D each of the two counts. The sentences are to be served D
wholly concurrently. The final total sentence is therefore
6 years and 11 months’ imprisonment for the two counts.
E E
This is the sentence.
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT36/14.9.2018/CP 6 HCCC 83/2018(1)/Sentence
V V
A HCCC 83/2018 A
[2018] HKCFI 2259
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 83 OF 2018
D D
-----------------
E HKSAR E
v
F F
WONG Wing-chi (黃穎芝)
G G
-----------------
H H
Before: DHCJ D Yau
Date: 14 September 2018 at 9.58 am
I Present: Ms Human Lam, SPP (Ag) of the Department of Justice, I
for HKSAR
Mr John Hemmings, instructed by Wong & Co, assigned by
J DLA, for the accused J
Offence: Trafficking in dangerous drugs (販運危險藥物)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M The defendant pleaded guilty before a Magistrate on 5 March M
2018 to two counts of Trafficking in Dangerous Drugs and was
N committed to the Court of First Instance for sentence, N
pursuant to section 81B of the Magistrates Ordinance,
Cap. 227.
O O
Particulars of the 1st Count are that she, on 24 January
2017, at Harbour Plaza Resort, City Tower 2, No 18, Tin Yan
P Road, Tin Shui Wai, unlawfully trafficked in 1.39 grammes of P
a crystalline solid which contained 1.28 grammes of
Q methamphetamine hydrochloride, commonly known as ‘ice’. Q
Particulars of the 2nd Count are that she, on the same day
R at Room 2856 of the same address, together with one Lau R
Sze-man unlawfully trafficked in a 67.26 grammes of a
crystalline solid which contained 60.45 grammes of
S S
methamphetamine, and 0.12 grammes of a solid which contained
0.09 grammes of cocaine.
T T
The defendant confirmed her pleas before me and admitted to
the contents of the Summary of Facts, read out to her.
U U
CRT36/14.9.2018/CP 1 HCCC 83/2018(1)/Sentence
V V
A Summary of Facts A
The premises mentioned in the particulars of the two counts
B is a hotel. The said Lau Sze-man, herein after as “Lau”, B
named in Count 2 was intercepted by police officers at the
front desk of the lobby on the charge date. The defendant
C C
was stopped at the same time when she was leaving the hotel.
D The defendant’s handbag was searched. One plastic bag D
containing the ‘ice’ in Count 1 and a hotel room key card
were found. The defendant was arrested and cautioned. She
E had nothing to say. Lau was also searched and a hotel room E
key card was found on her.
F F
The two were brought to Room 2856 of the hotel. The room
door was opened with the key card found on the defendant.
G A search was conducted and two inhaling devices were found G
on the coffee table inside the room. One of them had
32 millilitres of a liquid containing methamphetamine.
H H
And electronic scale, 232 empty transparent re-sealable
I
plastic bags, 83 straws and a roll of aluminium foil were I
found on top of a set of wooden drawers.
J The drugs in relation to Count 2 were found in 10 different J
plastic bags. Four of them were from inside a paper box and
that was stuck between the cushions of the sofa. The rest
K were found inside a plastic box concealed by a rolled-up K
towel and placed on the upper rack of a shelf in the
L bathroom. L
Hotel record confirmed that the defendant and Lau had been
M staying at the hotel on and off since December 2016. They M
changed rooms frequently, so much so that the hotel manager
started to pay attention to them. Immediately before their
N arrest, the two had been staying at the hotel since N
8 January 2017 and had changed room six times.
O O
Hotel closed circuit television footages show a non-ethnic
Chinese male taking the lift up to the 28th floor at 2.39 pm
P on the day. The defendant went down to the lobby at 4.03 P
pm, headed to the front desk and then went back up to the
28th floor. At 5.54 pm, the defendant, Lau and the man went
Q Q
down to the ground floor from the 28th floor. Two minutes
later, the defendant and the man left the hotel together,
R while Lau went to the front desk. The defendant and Lau R
were arrested shortly afterwards.
S The estimated street value of the seized drugs was $19,835. S
The last paragraph of the Summary of Facts, to which the
T T
defendant had admitted, states that the defendant now admits
U U
CRT36/14.9.2018/CP 2 HCCC 83/2018(1)/Sentence
V V
A and accepts that she possessed the dangerous drugs seized, A
both from her handbag and Room 2856, for the purpose of
unlawful trafficking.
B B
Previous convictions
C C
The defendant has nine convictions from four court
appearances. Six of those convictions are drug-related.
D Four were for possession of dangerous drugs, one for D
possession of equipment intended for smoking dangerous
drugs; and one for possession of a Part I poison.
E E
Her last four convictions were all dated 19 January 2016,
when she was sentenced to receive treatment at the Drug
F F
Addiction Treatment centre.
G Mitigation G
The defendant is 30 years old. She has a nine year old
H daughter and a six year old son. She received education in H
Hong Kong up to Secondary 3 level. The defendant had worked
I
as a hair stylist, makeup artist, salesperson and waitress I
before. She became a housewife in 2009.
J Letters in mitigation from the defendant herself, her J
daughter, elder sister, her pastor were submitted, all
seeking leniency.
K K
The defendant has been making good use of her time while in
L custody and has obtained some impressive grades in both L
English and Religious studies.
M In mitigation, the court was told that the defendant is M
heavily addicted to ‘ice’, consuming between 2 to 3 grammes
a day. Counsel was instructed to inform the court that up
N to 25 per cent of the total ‘ice’ was for her own use. N
O Sentencing guidelines and approaches O
The sentencing guidelines for trafficking in ‘ice’ were laid
P down in the case of HKSAR v Tam Yi-chun, CACC 534/2011. P
Subject to enhancement for aggravating factors and reduction
for mitigating factors, the tariff to be imposed after trial
Q Q
of trafficking between 10 and 70 grammes of ‘ice’ is 7 to 11
years’ imprisonment.
R R
Given that the drugs in Count 1 were found on the defendant
as she was leaving the hotel after having come down from the
S 28th floor, which is where the drugs in Count 2 were found S
and was where the defendant had been staying, I find that
the proper sentencing approach is to combine the quantity of
T T
all the ‘ice’ seized when applying the guideline sentence
and impose a concurrent sentence for both counts. Both
U U
CRT36/14.9.2018/CP 3 HCCC 83/2018(1)/Sentence
V V
A counsel for the prosecution and defence, agreed with this A
approach.
B I find that, since the quantity of cocaine in Count 2 is so B
small, if converted, its sentence would have no impact on
the sentence for the ‘ice’. For that reason, I will
C C
disregard the cocaine in sentencing the defendant on
Count 2. Again, both counsel agreed with this approach.
D D
The starting point
E A strict mathematical approach to the guideline tariff would E
lead to a starting point of 125 months’ imprisonment for
61.73 grammes of ‘ice’. This is the starting point I adopt.
F F
G Aggravating factor G
In relation to Count 2, a possible aggravating factor is
H that the offence was committed jointly with Lau. However, H
in Lau’s own trial, her count was amended from trafficking
I
jointly with the present defendant and others, to that of I
conspiring to traffic with them. Lau was acquitted
unanimously by the jury, after trial.
J J
I inquired with Ms Lam for the prosecution, as to whether
the defendant should be sentenced on the basis that she had
K committed the offence with Lau, or since Lau had been K
acquitted by the jury on essentially the same factual basis
L in a similar count, this court should pay due regard to the L
jury’s finding and not sentence the defendant on the basis
that she had committed Count 2 jointly with Lau.
M M
Ms Lam, very fairly, accepted that the defendant should not
be sentenced on that basis. However, Ms Lam pointed out
N that, the defendant gave evidence in court that Lau Sze-man N
never conspired with anyone to traffic in the drugs in the
O hotel room. The defendant’s own words were, and I quote, O
“The one who conspired with Ma Yik was me”.
P On this possible aggravating factor, I note first of all P
that in the particulars of Count 2, only Lau has been named
as an accomplice. There is no mention of Ma Yik or any other
Q Q
unknown accomplices. Yet, in Lau’s case, her conspiracy
charge particulars did include those co-conspirators.
R R
Furthermore, I find that it would not be fair to the
defendant if she is sentenced on the basis of her evidence
S given in Lau’s trial, without having given her a proper S
warning when she gave evidence in the other trial, that her
sentence might be affected. The defendant could have given
T T
evidence that she herself was trafficking in the drugs and
not Lau. She could have chosen not to answer any questions
U U
CRT36/14.9.2018/CP 4 HCCC 83/2018(1)/Sentence
V V
A that might affect her sentence, and her evidence might still A
be sufficient to exonerate Lau.
B I, therefore, find that under the circumstances, the B
defendant should not be sentenced on the basis that she had
committed Count 2 jointly with Lau, and neither should she
C C
be sentenced on the basis of her testimony in Lau’s trial,
about her conspiring with Ma Yik to traffic in those drugs,
D for the reasons given. D
Mitigating factors
E E
As mentioned above, it was originally put forward that 25
per cent of the ‘ice’ were for her self-consumption.
F F
However, because of the evidence given by the defendant in
G the trial of Lau concerning the same drugs found in the G
room, I indicated to defence counsel, Mr Hemmings, that I
was not prepared to accept, without further evidence, that
H up to 25 per cent of the ‘ice’ was for self-consumption. H
I
The case was adjourned, after my indication, so that I
transcripts of the defendant’s evidence could be made
available to counsel. At the resumed hearing, Mr Hemmings
J told the court that the defendant had decided not to pursue J
a discount based on self-consumption having had the
opportunity to read the transcripts.
K K
Be that as it may, for the sake of completeness, I find on
L the basis that the defendant had never mentioned in her L
testimony in Lau’s trial, not in any of her previous
interviews with the police, nor in her Summary of Facts,
M that any of the drugs in the hotel room were for her M
self-consumption, there would have been insufficient
evidence to support the defendant’s original claim that up
N to 25 per cent of the drugs were for self-consumption, had N
that been pursued.
O O
I have further considered whether the facts that the
defendant was a drug addict and that she said in Lau’s
P trial, that the drugs found in her handbag in Count 1 were P
left-overs from her own use and to be shared with her
friends, should cause her to be entitled to a discount for
Q Q
self-consumption.
R My decision is that they should not. The reason being that R
the quantity of the ‘ice’ involved in Count 1 is 1.28
grammes. Even if they were all to be for the defendant’s
S self-consumption, it would only be 2 per cent of the total S
narcotic contents. This cannot, even remotely, be regarded
as a ‘significant proportion’. As such, I would not have
T T
granted the defendant any discount on the basis of
self-consumption in relation to Count 1 either.
U U
CRT36/14.9.2018/CP 5 HCCC 83/2018(1)/Sentence
V V
A The only mitigating factor is the defendant’s timely pleas A
of guilty. For that, she is entitled to the full one-third
discount, resulting in a sentence of 83 months’
B imprisonment. B
Totality
C C
The defendant is sentenced to 83 months’ imprisonment on
D each of the two counts. The sentences are to be served D
wholly concurrently. The final total sentence is therefore
6 years and 11 months’ imprisonment for the two counts.
E E
This is the sentence.
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT36/14.9.2018/CP 6 HCCC 83/2018(1)/Sentence
V V