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DCCC 487/2019
[2020] HKDC 325
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 487 OF 2019
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HKSAR |
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V |
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CHEUNG MAN WAI, LILLIAN |
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| Present: |
Ms Jay Ma, Counsel on fiat, for HKSAR |
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Ms Lee Shin Man Cindy, instructed by Ernest Tang, Solicitors, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Trafficking in a dangerous drug (販運危險藥物) |
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[2] Possession of a dangerous drug (管有危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and a charge of possession of dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance and is so convicted.
Facts
2. On 20 March 2019 at about 4 am, the defendant was intercepted by the police at the junction of Portland Street and Cheung Sha Street, Mong Kok.
Charge 1
3. Upon search, police found in the defendant’s left front jacket pocket a black flannel bag containing a white tissue paper wrapping a plastic bag containing 6.54 grammes of crystalline solid containing 6.38 grammes of methamphetamine hydrochloride (‘Ice’).
Charge 2
4. The defendant was arrested and was then taken to Mong Kok Police Station, whereupon further search, police found in her right front trouser pocket a white tissue wrapping two plastic bags containing a total of 2.83 grammes of crystalline solid containing 2.77 grammes of ‘Ice’.
5. Police also found the following on the defendant, namely, cash of HK$362 and RMB¥100 and three mobile phones. No drug apparatus was found upon house search of the defendant’s residence.
6. Street value of the ‘Ice’ seized was estimated to be HK$5,153.50.
7. On the same day, 20 March 2019, the defendant was in possession of the ‘Ice’ seized on her for the purpose of unlawful trafficking in respect of Charge 1. In respect of Charge 2, the defendant was in possession of the ‘Ice’ seized.
Criminal Record
8. The defendant has two previous convictions, including one similar to the 1st charge for which she was sentenced to 5 years and 6 months’ imprisonment. She was released in January 2018.
Mitigation
9. The defendant is born in Hong Kong. She is now aged 30. She is divorced with a son aged 11. She lives with her parents, younger brother and the son. She works as a salesperson earning about HK$15,000 per month at the time of her arrest.
10. Since her release from prison, she has been supporting her son’s living as her former husband failed to pay maintenance.
11. Defendant is said to have been lured to commit the trafficking offence as she wished to earn some quick money to buy a computer for the son as his birthday present.
12. It has also been submitted on her behalf that due to a lack of self-control, her drug habit relapsed in March 2019 after her release from prison in January 2018.
13. She is now deeply remorseful as to what she has done. Her son loves her and during her time in prison, the son has always been visiting her and sending her mail, asking when she could return home. In fact, he has written a letter to this court, asking for leniency for his mother.
14. Defendant said she is determined to start afresh and take good care of her son on her future release from prison. She also feels sorry for what she did towards her parents. She asks for a lenient sentence to allow her to return sooner to her family.
15. Defence counsel handed to court mitigation letters from the defendant herself and the son.
16. Defence counsel also submitted that for Charge 1, the starting point should be 54 months, relying on the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
17. As for Charge 2, she submitted that the sentencing starting point should be 12 months’ imprisonment.
Discussion
Charge 1
18. On conviction on indictment, the maximum sentence is a fine of $5 million and to imprisonment for life.
19. In the case of Tam Yi Chun, CACC 524/2011, the Court of Appeal recast the sentencing guideline for trafficking in ‘Ice’ after trial. For trafficking in ‘Ice’ up to 10 grammes, the tariff is 3 to 7 years’ imprisonment.
20. In the case here, the appropriate sentencing starting point for trafficking 6.38 grammes of ‘Ice’ would be 66 months’ imprisonment.
21. The place where the defendant was arrested was not the defendant’s residence. Defendant accepts that all drugs seized in connection with the 1st charge are for trafficking.
22. Despite diligent mitigation by defence counsel, personal background of the defendant does not afford her sentencing discount when faced with conviction of trafficking in the dangerous drug. The only useful mitigating factor is her timely guilty plea, of which she is afforded a full one-third sentencing discount.
23. Accordingly, for Charge 1, the defendant is sentenced to 44 months’ imprisonment.
Charge 2
24. The maximum sentence for conviction on indictment for this charge is a fine of 1 million and to imprisonment for 7 years, subject to section 54A of the Dangerous Drugs Ordinance.
25. When sentencing cases of simple possession of a dangerous drug, two factors are of particular importance: the quantity of dangerous drug involved and the risk that the dangerous drug would get into the hands of others by access or distribution, ie latent risk.
26. The quantity of drugs in this charge is 2.77 grammes of methamphetamine hydrochloride. In the case of HKSAR v Wong Wai Wah, CACC 181/2017, the Court of Appeal referred to the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 where the Court of Appeal held that the following three-step approach should be adopted when determining an appropriate sentence for an offender who was a bona fide purchaser and convicted of simple possession of dangerous drug (heroin or ‘Ice’). For step 1, the judge should normally determine a starting point between 1 year to 18 months’ imprisonment. For step 2, the starting point is increased or enhanced to take account of the latent risk factor to arrive at the total sentence. For step 3, the total sentence is then adjusted to take account of the mitigating factors such as a guilty plea.
27. In our case here, the drug was 2.77 grammes in quantity. Urine test taken shortly after her arrest showed that she is an abuser of ‘Ice’. There is no evidence to contradict the defendant’s claim that she is employed at the time of arrest, although the income would appear not to be sufficient to support her drug habit.
28. The drugs were contained in two plastic bags rather than multiple packets, nor were there any items recovered from her residence for the potential distribution of drugs such as scale or packaging equipment. She has, at the time of the 2nd charge offence, admitted that she is in possession of the drugs seized for the 1st charge offence for trafficking. She was found in the street with the drugs in relation to the 2nd charge in the street in early morning.
29. It should be noted that on the evidence that she is abuser of ‘Ice’ and the quantity of ‘Ice’ was in two packets and no items or equipment for packaging and distributing the ‘Ice’ were found at her residence. Likewise, there were no items or equipment normally used for the consumption of ‘Ice’ found at her residence as well.
30. In all the circumstances of this case, this court considers that there is no real risk of dissipation of the drugs in Charge 2, and accordingly, there would be no enhancement of sentencing starting point regarding latent risk in this case.
31. Considering the quantity of the drugs in question and the circumstances of this case, the court will adopt, as suggested by defence counsel, a sentencing starting point of 12 months’ imprisonment for the 2nd charge.
32. Again, this court has considered all mitigation advanced by the defence counsel but again considered that the most valid mitigating factor is her guilty plea for which she is entitled to one-third sentencing discount, bringing the sentence for the 2nd charge to 8 months’ imprisonment.
33. The Charge 2 offence was committed at the same time as the Charge 1 offence. Although the two offences both relate to dangerous drug, commission of the 2nd charge offence obviously add to the culpability of the defendant in the 1st charge offence.
34. Considering the totality principle and the culpability of the defendant in the whole case, this court considers that the total sentence of 48 months is a just and proportionate sentence for the defendant in the case.
35. The court orders that 4 months’ imprisonment of the sentence in the 2nd charge shall run concurrent to the sentence in the 1st charge, and the rest 4 months of the sentence in the 2nd charge shall run consecutive to the sentence in the 1st charge.
36. Accordingly, the defendant is sentenced to a total sentence of 48 months’ imprisonment for the present case.
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