HKSAR v. CHAN CHI YUEN AND ANOTHER

DCCC 325 & 975/2023

(Consolidated)

[2024] HKDC 353

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 AND 975 OF 2023

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REASONS FOR SENTENCE

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1.  The 1^st defendant has pleaded guilty to a charge of trafficking in a dangerous drug, the drug being cocaine with a narcotic content of 7.54 grammes. The 2^nd defendant has pleaded guilty to a charge of attempted possession of a dangerous drug, the offences occurring on 23 November 2022.

2.  The facts of the offences by both defendants are simple. The 2^nd defendant was intercepted by police on leaving a flat in Wong Tai Sin. One of her phones contained messages about purchasing dangerous drugs from Wong Chu Jai and one message showed that Chu Jai was on his way. Police moved to make an interception. On doing so they found the 1^st defendant in a car and in the glove compartment was found a plastic bag containing 28 smaller re-sealable plastic bags containing cocaine. The 1^st defendant almost immediately admitted the drugs were cocaine and he would sell them for $400 per packet. The 2^nd defendant also admitted she was in the process of going to purchase cocaine for some $450 a packet.

3.  The estimated street value of the drugs seized is $11,076.

4.  The defendants’ background has shown that the 1^st defendant has a clear record. The 2^nd defendant at the time had a clear record. She seems to have recently had a gambling conviction but it is not relevant to sentence today.

5.  In mitigation I am told by the 1^st defendant he is presently aged 29, Secondary 6 education, has lived with his mother and elder sister. His mother apparently has some mental health issues and has required hospitalisation. He has a 4-year-old daughter and he was previously a construction worker.

6.  The 2^nd defendant is now aged 31 years old. She is married. She came to Hong Kong in 2008. As a result of missing a court date in July 2023, she has been detained for a total of 85 days in respect of this matter.

7.  As far as the approach to sentence are concerned there are guidelines in respect of trafficking in a dangerous drug. In the case of AG v Rojas [1994] 1 HKC 342 indicated that the guidelines applicable to heroin could be applied to cocaine. As far as the heroin guidelines are concerned, they are based on a case called R v Lau Tak Ming [1992] HKLR 370 where for a quantity of up to 10 grammes a starting point of between 2 to 5 years’ imprisonment is appropriate.

8.  As far as the other charge that the 2^nd defendant faces, possession of a dangerous drug, sentences can range very widely. There is no actual tariff in respect of this offence. I have been referred to HKSAR v Mok Cho Tik, CACC 165/2000, where it was said “For possession of a dangerous drug sentences of imprisonment between 12 to 18 months were not wrong on a single charge of possession of a dangerous drug”. As I have indicated earlier, sentencing for this offence could vary considerably depending on the previous history of the defendant.

9.  As far as the considerations on sentence are concerned, with the 1^st defendant who has had a previously clear record, a construction worker, family, a committed family, a young child who will miss his presence no doubt, the starting point for sentence if taken mathematically would be just in excess of 4 years’ imprisonment. What I am going to do as far as the 1^st defendant is concerned is take a starting point of 45 months’ imprisonment. He is entitled to the full one-third discount. That leads to a final sentence of 30 months’ imprisonment for this offence.

10.  Dealing with the 2^nd defendant, my considerations here arise out of her mitigation. She has a proposal at present to return to the Mainland. Her husband is actually here in court and presumably they would go together at some point in the future. She wishes for me to pass a sentence that will allow her to do that. Ordinarily one may call for background or Probation reports in order to see whether the defendant still has a drug dependency. I am told that she wishes to return to the Mainland and seek employment there and not to pass a sentence which would prevent that.

11.  She is a 31-year-old woman with a clear record. She is the master of her own future. What I will do is impose a sentence of imprisonment which is a sentence of 6 months’ imprisonment. It will be suspended for 2 years, will not take effect immediately, it will be suspended for 2 years. That means as far as the 2^nd defendant is concerned, she does not go to prison immediately but if she commits any further offence punishable by imprisonment she may be liable to serve that term of imprisonment within the next few years.