HKSAR v. HO CHEI KUEN

HCCC 463/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 463 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Background and the Facts

The defendant pleaded guilty before me to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Briefly, the facts were these: in the morning of 26 June 2013, the defendant was stopped by the police when she emerged from her premises. The defendant was then brought back to the premises, where a search was conducted. As a result, 22 empty plastic bags, an electronic scale and a plastic container containing eight plastic bags of “ice” and two plastic bags of 12 pellets of heroin were found in a drawer under the bed.

The drugs were later confirmed to be those now particularised in the count; that is, a total of 17.9 grammes of a crystalline solid containing 17.49 grammes of methamphetamine hydrochloride and a total of 2.18 grammes of a mixture containing 1.18 grammes of heroin hydrochloride.

Under caution at the scene, the defendant claimed that the “ice” was for her own consumption, but she would treat her friends to it when they came. As for the heroin, the defendant stated that she merely procured the drug on behalf of her friend and she did not take it.

In the subsequent video-recorded interview with the police, the defendant basically repeated what she had said at the scene, but provided more particulars. She also said that she worked as a part-time mobile phone trader, earning about HK$8,000 per month. She admitted that the electronic scale was for weighing drugs and the empty plastic bags for storing drugs.

In respect of her consumption of “ice”, she claimed that she would take a mixture of 1.75 grammes per week, which meant that the quantity found in her premises would last about 10 weeks.

The estimated street value of the “ice” at the time of seizure was about HK$12,000 and that of the heroin was about HK$1,800.

The defendant is aged 53, approaching 54 and has married twice, but is now divorced. She has four grown up children. At the time of her arrest, the defendant was living with her cohabitee.

The defendant has been before the court on five previous occasions, with a total of seven convictions; two of those were possession of Part I poison, two were possession of dangerous drugs. The most recent one was trafficking in a dangerous drug in respect of which she was sentenced in December 2009 to a term of 5 years and 4 months’ imprisonment. She was released in December 2012. Within just about half a year, the defendant committed the present offence.

It was said that the defendant had a very sad childhood. She was adopted by a couple as the defendant’s parents passed away shortly after her birth. At the age of 16, the defendant’s foster mother also passed away, whereas her foster father had left the family shortly adopting her. The defendant then became a nightclub hostess.

In 1999, the defendant was diagnosed with depression when her second marriage failed. In 2002, the defendant sustained serious injuries to her ribcage and pelvic girdle during a traffic accident. At around that time, she was introduced to drugs and had been taking “ice” since then.

In mitigation, Miss Barbara Wong urged this court to accept that part of the “ice” was for the defendant’s own consumption as it is evident from her conviction records and admission that she was an “ice” addict; further, there was a pot found in the premises which was said to have been used for “ice” consumption.

Miss Wong also relied on the fact that the amount of drugs found was not large and that there was no evidence to suggest that the defendant was a major player in the drug trade. She asked the court to pass as lenient a sentence as possible.

This morning, Miss Wong handed to the court a letter written by the defendant in which she expressed her remorse.

Sentencing Considerations

Since the count to which the defendant pleaded guilty involved multiple drugs, there are two sentencing approaches; that is, the individual approach and the combined approach (see, for example, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Wong Kin Kau CACC 269/2009, 4 May 2010 (unreported)). No doubt, no matter which approach is to be taken, the paramount consideration at the end is the totality of the overall starting point.

Having considered the facts of this case and that the bulk of the drugs was “ice”, I am going to adopt the combined approach.

The tariff for trafficking in “ice” was laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004 (unreported). For trafficking between 10 and 70 grammes of “ice” a term of imprisonment of between 7 and 10 years is called for. In respect of heroin and in accordance with the guidelines laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370, for up to 10 grammes of heroin, a term of 2 to 5 years’ imprisonment is called for.

In the present case, the amount of “ice” involved was 17.49 grammes, whereas the amount of heroin was 1.18 grammes. Given these quantities and that it is more serious to traffic in more than one type of drugs, I consider an overall starting point of 7 and a half years to be appropriate in this case.

The Sentence

The defendant pleaded guilty and she will receive a one-third reduction for that.

As to the defendant’s claim that the “ice” was basically for her own consumption although she would treat her friends to it when they went to her premises, my observations were these: although the defendant had previous convictions of possession of Part I poison and possession of a dangerous drug and so, she might well be a drug abuser, according to

her own admission, she only took 1.75 grammes of “ice” per week. In other words, the “ice” found by the police far exceeded her daily needs.

Given the estimated street value of the ice, the fact that the defendant was only released from the prison half a year ago after having served a term of 3 years’ imprisonment, and the reported earnings of the defendant, I do not believe that she had the financial means to purchase the amount of “ice” simply for storing it up at home for self-consumption, especially when Miss Wong submitted during mitigation that the defendant only used the “ice” basically as a painkiller.

An electronic scale and empty plastic bags were found in the defendant’s premises. She admitted using the same for weighing and packaging the drugs. If the ice was for self-consumption only, there was no need to precisely weigh and pack the drugs as claimed by the defendant.

The defendant’s latest conviction was one of trafficking in a dangerous drug in respect of which she was sentenced to a term of 5 years and 4 months’ imprisonment in December 2009.

In any event, treating friends to the “ice” is also trafficking. The court has made it clear in HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 and in AG v Hii Siew Cheng & Another [2009] 1 HKLRD 1 that such trafficking which is generally known as “social trafficking” should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking.

For the observations given above, I reject that any significant amount of the “ice” found was for the defendant’s own consumption. It might be that the defendant would have a small amount of “ice” for herself, but possession of a dangerous drug itself carries with it a term of imprisonment. Therefore, in this case, I do not consider this self-consumption element would meaningfully affect the sentence and I do not see any basis for reduction because of this claim.

In respect of the heroin, the defendant’s claim of procuring it for her friend does not assist her in her mitigation, for it was trafficking nevertheless. Therefore, there is no reason why the defendant should be given a lighter term merely because she procured it for another.

In short, other than the defendant’s plea, there is nothing which would warrant any further reduction in sentence.

The defendant is therefore to serve a term of 5 years’ imprisonment for this offence.