HKSAR v. CHAN TING TING, EMBIE

DCCC 407/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 407 OF 2014

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Reasons for Sentence

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1. The defendant, Chan Ting-ting Embie, pleaded guilty before me to one count of “Trafficking in a Dangerous Drug”. This case concerned 35.30 grammes of a powder containing 26.57 grammes of ketamine and 11.14 grammes of a solid containing 7.19 grammes of ketamine.

2. The ketamine in question was all found on the defendant on 10 March 2014 outside a fast-food shop at Po Tat Shopping Centre, Sau Mau Ping.  The defendant was searched by the police, and 30 packets of ketamine were found in her possession.  Of the 30 packets, 23 packets contained ketamine in powder form whereas seven packets contained ketamine in a solid form.  The 23 packets of ketamine in powder form were found in a zipped inner pocket of the handbag carried by the defendant.  The seven packets of ketamine in solid form were found in a cigarette box inside the handbag of the defendant.

3. Under caution, the defendant told the police she had just given birth to a baby and she had just bought the ketamine for $3,000 at the park in Po Tat Estate.  She intended to use the ketamine to reduce stress.  Upon search, the police found cash of over $3,000, two mobile phones and two SIM cards on the defendant. 

4. The street value of the drugs concerned was over $5,400.

5. The defendant has hitherto a clear record in Hong Kong.

6. The antecedent statement of the defendant shows that she is now aged 26, born in Hong Kong, and she has received education up to Secondary 3 level.  She is a manicurist by occupation.  She is not a drug addict.  A married woman, she has two sons and three daughters.

7. Mr Poon, who mitigated on the defendant’s behalf, had prepared a written mitigation.  Mr Poon submitted that the starting point for the ketamine in question should be in the range of 4 to 6 years’ imprisonment, applying the tariff as set down in Hii Siew Cheng.  Given the quantity of the ketamine involved, Mr Poon submitted that a starting point of about 60 months, ie 5 years’ imprisonment, would be appropriate.

8. Mr Poon took me through the background of the defendant.  The defendant’s mother passed away when the defendant was only 6, and the defendant’s father remarried shortly after the death of the defendant’s mother.  The defendant became to display emotional and behavioural disturbance since the death of her mother.  At one stage, she was followed up by social worker and she had to live in a temporary home provided by the Social Welfare Department.  She found herself pregnant at the age of 18.  In fact, at the time when the defendant committed the offence in question, she had just given birth to two twin daughters, and the twin daughters are now only 7 months old.

9. Mr Poon submitted that a significant portion of the ketamine in question was intended for the defendant’s self‑consumption.  As for the trafficking part, the defendant intended to share the drugs with her friends.  Mr Poon took me through the various factors as set down in the case of HKSAR v Wong Suet Hau, Ice CACC 366 of 2000. 

10. After hearing Mr Poon, I am prepared to accept that the defendant intended to consume part of the drugs found on her but not a significant part.  In coming to that conclusion, I have borne in mind the various factors referred to in Wong Suet Hau. The defendant was found in possession of a large quantity of ketamine, ie 33.76 grammes.  23 packets contained ketamine in powder form, and they were found in a zipped inner pocket of the handbag of the defendant.  The remaining seven packets contained ketamine in solid form were found in a cigarette box in the handbag of the defendant.

11. From what Mr Poon told me and from the antecedent statement, the defendant is not a drug addict.  She only abused drugs occasionally.  I am aware that the defendant was in employment at the time of her arrest, and she has a clear record. 

12. From the materials before me, I am not prepared to accept that a significant portion of the drugs in question were for the defendant’s own consumption.  From the materials before me, including the medical documents placed before me, I am prepared to accept, however, that the defendant intended to consume part of the drugs found on her. 

13. Mr Poon told me the defendant intended to share some of the drugs with her friends.  Social trafficking is not a mitigating factor that can reduce the sentence of a defendant who committed the offence of trafficking in dangerous drugs.

14. In sentencing the defendant, I have borne in mind the quantity of the ketamine involved. Applying the tariffs as set down in Hii Siew Cheng, I agree with Mr Poon that a starting point of 60 months’ imprisonment is appropriate. The defendant is entitled to one-third reduction for her guilty plea and clear record.  That would bring the defendant’s sentence from 60 months’ imprisonment down to 40 months’ imprisonment.

15. I am prepared to accept that the defendant intended to consume part of the drugs found on her.  For the self‑consumption element, Mr Poon urged me to give the defendant a further discount in the region of 10 to 25 per cent.  In support of his arguments, Mr Poon cited the case HKSAR v Ngai Ho Ting CACC 417 of 2011. The appellant in that case brought a quantity of “Ice” from China to Hong Kong.  All the drugs in question were for the defendant’s own consumption.  What made Ngai Ho Ting’s case a case of trafficking was the fact that the defendant brought the drugs into Hong Kong from China.  It was against this background that the Court of Appeal granted a further discount of 13 months on top of the one-third reduction for Ngai’s plea of guilty.

16. In the case Chung Kam Fai referred to in HKSAR v Chow Chun Sang CACC 135 of 2011, in Chung’s case, the defendant brought a quantity of heroin from Bangkok into Hong Kong and contended that the drug was wholly for his own consumption.  The Court of Appeal considered that the defendant should be given a further reduction of 25% on top of the one-third reduction for guilty plea because of the fact that the drugs were all for his consumption.  Again, as in the case of Ngai Ho Ting, what made Chung Kam Fai’s case a case of trafficking was the fact that the defendant brought the drugs to Hong Kong from Bangkok.  In other words, the act of importing made that case a case of trafficking.

17. In Chow Chun Sang, the Court of Appeal observed at paragraph 19:

“We are of the view that in drug-trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.”

18. The court went on to say:

“In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant. We need to emphasise that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

19. In the present case, I have borne in mind the defendant was found in possession of over 30 grammes of ketamine.  Seven packets of ketamine in solid form were separately stored in a cigarette box of the defendant.  The defendant intended to share the drugs with her friends. 

20. I am aware that the defendant has a clear record.  In my judgment, the self-consumption element in this case calls for an additional reduction of 10 months’ imprisonment.  That would further bring the defendant’s sentence down to 30 months’ imprisonment.

21. The other matters relied upon by Mr Poon in his submissions, for example, the fact that the defendant was suffering from depression at the time and she intended to use the drugs to reduce her stress and the fact that the defendant’s twin daughters are just seven months old are not matters that can be prayed in aid for the defendant, and I am not prepared to give the defendant any additional discount for these matters.  The defendant should have thought about the welfare of her children before she committed the offence.

22. For the reasons given, I sentence the defendant to 30 months’ imprisonment for trafficking in dangerous drugs.