HKSAR v. CHAN SUET PING

DCCC 743/2017

[2018] HKDC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 743 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was convicted upon her own pleas and admission of the summary of facts dated 28 August 2017 of two charges.  Charge 1, trafficking in a dangerous drug, the net narcotic involved is 17.1 grammes of ketamine.  Charge 2, possession of a dangerous drug, the net narcotic involved is 6.39 grammes of methamphetamine hydrochloride.

The facts

2.  At around 3:21 pm on 9 December 2016, PC15741 (PW1) and WPC15215 (PW2), having observed the defendant acting furtively, intercepted her at the junction of Shanghai Street and Saigon Street.  Upon search, the officers found inside the defendant’s backpack one cosmetic bag containing 16 packets of suspected ketamine and one paper bag.

3.  The defendant was arrested for trafficking in a dangerous drug and was then cautioned.  In reply, she admitted that she was paid to deliver the drugs and there were some “Ice” at her home.  The defendant was found to have on her person HK$3,872 and RMB550 cash, two keys and two mobile phones.

4.  House search was conducted at the defendant’s residence at Room A, 13/F, No 133 Cheung Sha Wan Road, Sham Shui Po.  One packet of suspected “Ice” was found on top of a cabinet.  The defendant was arrested for possession of dangerous drugs.  Under caution, she admitted that the “Ice” was for her own consumption.

5.  In a subsequent video-recorded interview, the defendant admitted, among other things, the following:

(a) She confirmed the admission she made at the time of her arrest.

(b) A few months ago in a bar, she came to know a female who asked her whether she wanted to earn some money.

(c) On the day of her arrest, that female called and asked her to deliver some goods.

(d) At about 2 pm that day, the defendant was given two large packets and 15 small packets of ketamine near 113 Cheung Sha Wan Road.

(e) Before the defendant was arrested, she had sold one packet of ketamine for HK$3,800.

(f) Among the HK$3,872 cash found on her, HK$3,800 was from that sale.

(g) The defendant was supposed to hand over the sale proceeds later on that night.

(h) She would be given HK$100 as reward for each transaction.

(i) A few days ago, the female in the bar gave the defendant a packet of “Ice” for free for the defendant’s own consumption.

(j) The defendant had the habit of taking cocaine and “Ice”.

(k) The LG mobile phone was the one used for trafficking dangerous drugs.

6.  It was confirmed by the government chemist’s certificate that the said 16 plastic bags of suspected ketamine contained a total of 40.7 grammes of a solid containing 17.1 grammes of ketamine, and the said one plastic bag of suspected “Ice” contained 6.46 grammes of a crystalline solid containing 6.39 grammes of methamphetamine hydrochloride.

7.  The estimated retail value of the ketamine seized is HK$11,192, and the estimated retail price of the “Ice” seized is HK$2,222.

Defendant’s background

8.  The defendant is 23 years old, single, born in Guangzhou, China, received education in Hong Kong up to Form 6.  She has a clear record.

Mitigation

9.  It was submitted that the defendant is in fact a packaging worker earning HK$7,000 to HK$7,600 a month.  She is living with her mother.  A letter from Queen Mary Hospital was submitted to certify that the defendant previously suffered from a blood disease but has recovered and is now attending follow-up medical appointments at regular intervals.  The defendant and her mother each submitted a letter expressing remorse and asked for leniency.  It was also said in those letters that the defendant was diagnosed to have that blood disease and had been receiving treatment for almost 10 years.  That explains for her unsatisfactory academic results and her joining of the workforce right after her graduation.  She committed the current offences because of bad influence from others.

10.  A letter from Caritas Youth Community Service was submitted to show that the defendant had been seeking counselling help and support for her drug abuse problem in the last year.  It was said on her behalf that she is determined to change and ready to take responsibility for the crime committed.  Finally, a certificate was also submitted to show that the defendant had completed a foundation course for 112 hours of cosmetician assistant training.  The defence fairly and correctly accepted that the main mitigation is the defendant’s guilty pleas and asked for a lenient sentence. 

Sentence

11.  Before the arraignment, I raised with the prosecution a matter which I observed from the said summary of facts prepared for plea and sentence.  In those facts, it was recorded that the defendant when arrested was in possession of cash HK$3,872.  It was also recorded in those facts that the defendant in a police interview admitted that she had just sold a packet of ketamine for HK$3,800 shortly before her arrest.  The money was among the cash found on her.  She intended to hand over that money later that night and she would be given HK$100 as reward for each transaction.

12.  All the above amounts to an admission of a separate act of trafficking in a dangerous drug which is not reflected in the current charges.  The matter was adjourned for the prosecution to reconsider the matter.  I was informed earlier today that it was decided by the prosecution to proceed with the charges and the summary of facts as they were. I do not wish to delay the matter any further by causing further enquiries to be made if that is the confirmed view of the prosecution.  I have reminded myself that irrespective of any other views I may have on the matter, I should sentence the defendant solely on the basis of the current charges and the relevant facts which support them.

13.  I now deal with Charge 1.  There are clear sentencing guidelines for trafficking in ketamine, see SJ v Hii Siew Cheng [2008] 3 HKC 323.  For trafficking in 10 to 50 grammes, the starting point should be one of 4 to 6 years.  The amount of ketamine involved in Charge 1 is 17.1 grammes.  I adopt a starting point of 4 years and 3 months, i.e. 51 months.  I am prepared to give her the full one-third discount for the timely plea which makes it 34 months. 

14.  The defendant’s medical condition and other circumstances like clear record, as a matter of principle, do not constitute significant mitigation as they should have been subsumed in the credit given for the guilty pleas.  Nevertheless, I am prepared to exercise my discretion to give her another 2 months’ reduction to reflect her good character and her other personal circumstances including her determination to change.  This is already the most lenient treatment I could give to the defendant in the serious circumstances of this case.  The sentence for Charge 1 is therefore 32 months’ imprisonment.

15.  For Charge 2, it is simple possession of 6.39 grammes of “Ice”.  It was established in the Court of Appeal’s decision HKSAR v Mok Cho Tik [2001] 1 HKC 261 certain sentencing principles for cases of possession of dangerous drug, see in particular paragraph 17 of the judgment.  The starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.  The quantity would be the main governing factor, and whether or not the defendant is a persistent offender is also relevant for the determination of the starting point.

16.  Then the sentencing court should consider the degree of enhancement for the risk factor which is not a matter of mathematics.  The factors to be considered include the employment, if any, of the defendant; the place where the drug was kept; the previous conviction of trafficking, if any; and of course the quantity of drugs.  The full circumstances of the risk must be assessed.

17.  In view of the quantity of “Ice” involved in Charge 2, and the defendant’s clear record, I adopt a basic starting point of 12 months’ imprisonment which is already the lowest in the range as suggested by the Court of Appeal in Mok Cho Tik. 

18.  I now proceed to consider the risk factor. Having considered all the circumstances, including the defendant’s background and her employment as well as the relatively small quantity of “Ice” found at her residence, I am prepared to accept that the risk is not particularly high. I shall enhance the basic starting point by 6 months which is only half of the 12 months’ enhancement given in Mok Cho Tik.  The starting point for Charge 2 is 18 months’ imprisonment.  Again, one-third discount is to be given for her guilty plea, 2 months’ reduction for her good character and her other personal circumstances as aforesaid.  The final sentence for Charge 2 is 10 months’ imprisonment.  Again, this is already the most lenient sentence I could pass in the circumstances of this case.

19.  Finally, I have taken note of the fact that the two offences are, strictly speaking, by nature separate and distinct. Nevertheless, in view of the totality principle, I order half of the sentence for Charge 2, i.e. 5 months, to run consecutively to the sentence for Charge 1.  To conclude, the defendant is sentenced to 37 months’ imprisonment in total.