HKSAR v. CHUI SIU WAI

DCCC 344/2022

[2023] HKDC 336

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 344 OF 2022

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REASONS FOR SENTENCE

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1.  Ms Chui pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that she, on 14 December 2021, on a private car bearing registration mark XP8985, outside No 14 Dundas Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 11.56 grammes of a solid containing 10.03 grammes of cocaine and 0.28 gramme of a solid containing 0.24 gramme of ketamine.

Facts admitted by Ms Chui

2.  On 14 December 2021, at about 3 am, at a roadblock at Dundas Street in Yau Ma Tei, police intercepted a private car with only Ms Chui on board as the driver.  Ms Chui was directed to drive to the searching area outside No 14 Dundas Street.  Ms Chui was instructed to step out of the car.  In a wallet carried by Ms Chui was found cash of $12,670.

3.  Police searched the car.  In the storage compartment between the driver’s seat and the front passenger’s seat, police found two chewing gum packaging (“Exhibit 6” and “Exhibit 8”), which contained, inter alia, the following:-

In Exhibit 6

(a)  30 resealable plastic bags containing a total of 5.85 grammes of solid containing 4.59 grammes of cocaine;

(b)  21 resealable plastic bags containing a total of 4.05 grammes of solid containing 3.87 grammes of cocaine; and

(c)  One resealable plastic bag containing a total of 1.31 grammes of solid containing 1.28 grammes of cocaine;

In Exhibit 8

(d)  One resealable plastic bag containing 0.28 gramme of solid containing 0.24 gramme of ketamine; and

(e)  2 resealable plastic bags containing 0.35 gramme of solid containing 0.29 gramme of cocaine.

4.  Further, the police found in the car three mobile phones, a black bag containing cash of $26,700, and the car key.

5.  Ms Chui was arrested for trafficking in dangerous drugs.  Under caution, she stated that the cocaine found was for her own consumption and asked for a chance.

6.  The car was rented by Ms Chui from a car rental company since 29 October 2021.

7.  The total estimated average retail price of all the drugs was about $19,313.

8.  Ms Chui now admits that she possessed all of the drugs for the purpose of unlawful trafficking.

Criminal record

9.  Ms Chui has 5 previous convictions none similar.

Antecedents

10.  Ms Chui is aged 33 (31 at the time of the offence), educated to secondary level.  She was a kitchen worker at the time of arrest.  Ms Chui is single and lived with her family.

Mitigation

11.  Mr Lawrence Law of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Chui.  The following is a summary of the mitigation submissions.

12.  Ms Chui used to live with mother (60)  and a younger brother.  She worked as a kitchen worker, earning around $23,000 per month out of which she gave $5,000 to mother as household expense.  Her younger brother and younger sister are in court to give her support.

13.  Ms Chui admitted the offence, showing deep remorse.

14.  The narcotic contents of the dangerous drugs here are 10.03 grammes of cocaine and 0.24 gramme of ketamine.

15.  For the cocaine, the arithmetic starting point according to the tariff is 5 years’ imprisonment: AG v Pedro Nel Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLRD 370.

16.  For the ketamine, for trafficking in up to 1 gramme of the drug, the tariff sentence (starting point)  is within the court’s discretion: SJ v Hii Siew Cheng [2009] 1 HKLRD 1.

17.  The Court of Appeal in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 held that when sentencing for a number of different quantities of drugs, the sentencing court can adopt the ‘individual approach’ or the ‘combined approach’.

18.  It was submitted that if individual approach is adopted, the court will look at each component of the batch, and then sentence by adding up the different sentences relevant to each individual drug; if combined approach is adopted, the court will calculate the applicable sentence for the more or most serious drug (in terms of potency)  ie cocaine in the present case as a base drug for purpose of sentencing; and then adjust the sentence upwards to take into account significant quantities of the other (less serious)  drug.

19.  It was submitted that the quantity of the ketamine in the present case does not fall into the category of “significant quantities” but in small quantities; that the case of Yip Wai Yin held that the court may choose to ignore such small quantities for the purpose of sentencing (see 372A-E).

20.  It was further submitted that according to the absurdity test, if treating the 2 drugs as cocaine in the total quantity 10.27 grammes (10.03 grammes + 0.24 gramme), the sentencing starting point will be 5 years plus 8 days; that the court shall impose a sentence not more than 5 years and 8 days in this case.

21.  Ms Chui asserts that half of the cocaine was for her self-consumption, as well as the whole of the ketamine.  The urine test conducted shortly after the arrest bore a positive result for cocaine.  She also stated under caution that the cocaine was for self-consumption.

22.  Ms Chui maintains that she has been taking cocaine for 5 to 6 years, spending $7,000 to $8,000 per month for such consumption; that she just sometimes took ketamine, less frequent than taking cocaine.

23.  Ms Chui’s instructions are that on the night in question, since she (a usual customer)  bought a relatively large amount of cocaine, she got a discount and she paid only $7,000 to $8,000 for the cocaine and she obtained the ketamine for free.  Ms Chui maintains she had sufficient income to spend $7,000 to $8,000 on the cocaine half of which would be consumed evenly over 5 days. Ms Chui’s instructions are that she worked in a Mong Kok restaurant and she had just been paid her salary on the day; that she had just got off duty at around 2 am; that she drove the car to meet the seller for purchase of drugs.

24.  The Court of Appeal in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 has explained in para 34(1)  to (3)  what factors should be considered by the court in determining whether to accept the contention of self-consumption of dangerous drugs; and pointed out that usually, a court will be able to determine the issue from these factors without a Newton hearing.

25.  The Court of Appeal in HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450 at para 17 applied the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, namely where all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25%.  The Court of Appeal in Tsang Chung Keung gave a discount of 18% where half of the drug was for self-consumption (see para 18).

26.  The court is urged to discount the sentence by 20% and thereafter to further discount the resulting figure by 1/3 to account for the guilty plea.

27.  Mr Law submitted on behalf of Ms Chui a mitigation letter written by Ms Chui herself.  The contents are generally that being the economic pillar of the family, she committed the offence because of financial difficulty; she promises not to re-offend and urges the court to be lenient.

28.  After the court has reminded Mr Law of the case of HKSAR v Cheung Ho Kit [2020] 2 HKLRD 1021, in particular at para 8 where it referred to the expert opinion of a Dr Mak to the effect that the average daily consumption of cocaine per addict was 0.2 gramme, Mr Law submitted that if that was the daily consumption rate, then Ms Chui would take 25 days to finish half of the cocaine seized rather than the 5 days originally stated in the mitigation submissions.

29.  Mr Law added that since Ms Chui was a habitual user of cocaine, she would take more than 0.2 gramme a day.

30.  When it was pointed out that according to the original mitigation, Ms Chui would only spend $7,000 to $8,000 a month on cocaine, Mr Law took further instructions and changed his submission to saying that Ms Chui’s monthly spending on drug was $24,000.

31.  When told the court will not accept a bare assertion from the bar table that half of the cocaine was for self-consumption, Mr Law took instructions from Ms Chui.  Mr Law then informed the court that Ms Chui will not give evidence to substantiate her claim.

Sentence

32.  Trafficking in a dangerous drug is a serious offence which is made more serious by the presence of more than one type of drug.

33.  Mr Law for the defence has already submitted that for trafficking in up to 1 gramme of ketamine, the tariff sentence is within the court’s discretion: SJ v Hii Siew Cheng (supra).  For my part, I noted that for the next band up in the tariff sentence for trafficking in the same drug ie for upward of 1 gramme to 10 grammes of the drug, the sentence would be 2 to 4 years.

34.  Given the minimal amount of ketamine in this case ie 0.24 gramme, I will exercise my discretion to ignore it.

35.  In the result, I will sentence only on the basis of about 10 grammes of cocaine.  According to the tariff, this is equivalent to the starting point of 5 years if a purely arithmetical approach is taken.  This is the initial starting point that I shall adopt.

36.  The mitigation is complicated by the claim of Ms Chui using half of cocaine for self-consumption.  I have indicated during mitigation that the court would not accept the claim without evidence from Ms Chui.

37.  Although there is no live evidence to support the claim, the court is still obliged to look at what evidence there was which might support the claim for self-consumption, whatever the proportion of the drug concerned.

38.  Going through the list stipulated at 79C-G of Wong Suet Hau (supra), I noted that the amount of cocaine was large, and it was clearly separated into two distinct packaging viz Exhibits 6 and 8, the latter of which contained a small amount of ketamine and a small amount of cocaine; Exhibit 6 contained a large number of plastic bags; the drugs were carried in a car on transit on a public road; the urine test after arrest bore a positive result for cocaine; Ms Chui stated under caution that the cocaine was for self-consumption; Ms Chui had a monthly salary of $23,000; and Ms Chui having no previous convictions relating to dangerous drugs.

39.  I noted also Ms Chui had a total amount of cash on or about her ($39,370)  at the time of arrest incommensurate with her monthly salary.

40.  I concluded that the most that I can accept from the circumstances of the case is that the drugs in Exhibit 8 ie 0.29 gramme of cocaine and 0.24 gramme of ketamine were for Ms Chui’s self-consumption.  Being insignificant amounts of drugs, further discount of sentence on the basis of self-consumption of them is not appropriate.

41.  Ms Chui pleaded guilty in good time and so shall be entitled to 1/3 discount in sentence.  I can see no other mitigating factors of weight to justify another reduction in sentence.

(Ms Chui, please stand)

42.  The sentence is therefore 40 months’ imprisonment.