HKSAR v. SUM SUK YEE AND ANOTHER

DCCC1220/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1220 OF 2011

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Reasons for Sentence

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The Charges

1.  The 1st Defendant pleaded guilty to one charge of “trafficking in dangerous drugs”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the 1^st charge). She pleaded not guilty to a charge of “keeping a divan” (the 2^nd charge). Upon the application of the prosecution, that charge was ordered to be left on the court file and not to be proceeded with without the leave of the court.

2.  The 2nd Defendant pleaded guilty to one charge of “inhalation of a dangerous drug”, contrary to sections 8(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (the 3^rd charge).

The Facts

3.  These offences were discovered when the police executed a search warrant in the premises rented by the 1st Defendant on 17 August 2011. Upon entry, the police found the 1st and the 2nd Defendants, together with others, inside the premises. Later, the drug particularized in the 1^st charge, that is, 1.17 grammes of a crystalline solid containing 1.13 grammes of methamphetamine hydrochloride and 0.79 gramme of a mixture containing 0.5 gramme of heroin hydrochloride; as well as items like bottles inserted with straws; an electronic scale; lighters; pieces of aluminium foil; spoons; and empty transparent resealable plastic bags, were found on the bed inside the premises.  

4.  When asked, the 1st Defendant admitted that she rented the premises at HK$200 per day and those present were her friends. She further admitted that she sold “ice” and “heroin” to them. When cautioned after arrest, the 1st Defendant repeated her admissions.

5.  Both at the scene and during a subsequent interview, the 2nd Defendant admitted buying “ice” from the 1st Defendant. She then inhaled it in the premises. 

Mitigation – the 1st Defendant

6.  The 1st Defendant is aged 39. She has been before the court on 15 occasions with 16 convictions. 9 of those were drug related offences. On 26 September 2011, the 1st Defendant was sentenced to DATC in respect of an offence of “possession of a dangerous drug” which took place on 19 June 2011. According to the record, she was granted bail on 19 June 2011. However, the 1st Defendant then committed the present offence while she was on bail. The 1st Defendant was also subject to a supervision order at the time of the present offence.

7.  The 1st Defendant was educated up to Form 3 level. She is single. At the time of her arrest, the 1st Defendant was unemployed and was relying on CSSA. Her parents have passed away and her siblings are living in Canada.

8.  In mitigation, it was said that although the 1st Defendant has been a drug addict for about 20 years, this was her first “trafficking” conviction. She is now very remorseful and has decided to quit her drug habit. At the time of the offence, she was merely selling drugs to her friends so as to earn some money to support her own consumption. Mr. Chan submitted that the amount of the drugs involved in this case was relatively small and he therefore sought, on behalf of the 1st Defendant, a lenient sentence.

Mitigation – the 2nd Defendant

9.  The 2nd Defendant is aged 33. She was educated up to Form 1 level. She then quitted school. Between 1995 and 2011, she had taken up jobs only occasionally. The 2nd Defendant is single and is now living with her mother and younger brother. Her father passed away in 1995.

10.  The 2nd Defendant has 6 previous convictions. 3 of those were “possession of a dangerous drug”; 2 were “possession of pipe/equipment fit and intended for smoking a dangerous drug”; 1 was “theft”. She had been put on probation on 4 occasions, that is, in 1996, 2001, 2007 and 2010. She had also been sent to the DATC in 1997, 2004, 2007 and 2010. At the time of the present offence, the 2nd Defendant was subject to a supervision order.

11.  Before me were letters written by the 2nd Defendant’s boyfriend, her mother and her younger brother. They all expressed that, this time, the 2nd Defendant is determined to turn over a new leaf and to quit her drug habit. Two reports which showed negative “ice” results in respect of the 2nd Defendant’s urine samples collected in January and February 2012 were also provided to me.

12.  In compliance with section 54A of the Dangerous Drugs Ordinance, I have sought a DATC report on the 2nd Defendant and have adjourned sentence to today. It was disclosed in the report that the 2nd Defendant’s previous performance in the DATC was not satisfactory. She started taking heroin in 1996. Upon her release in January 1998 after her first admission to the DATC, she relapsed into taking heroin in July 1998. Since late 1998, it was reported that she also started inhaling “ice”. Thereafter, she had been sent to the DATC three more times. In April 2011, upon her release from the centre the 4^th time, she relapsed into taking “ice” on a daily basis until the day when she committed the present offence. She was then recalled to the DATC between 18 August 2011 and 15 November 2011. Afterwards, she was remanded in custody until 13 December 2011 when she was released on bail.

13.  However, it was the opinion of the medical officer that the 2nd Defendant is no longer a drug dependant and she is therefore not considered suitable for admission to the DATC.

Sentencing the 1st Defendant

14.  In respect of the 1^st charge in which different drugs were involved, the Court of Appeal has pointed out in a number of decisions that there are two sentencing approaches, that is, the “individual approach” and the “combined approach”, but irrespective of which approach is to be taken, the paramount consideration at the end is the totality of the overall starting point (see, e.g. HKSAR v Ko Ka Hing [2009] 4 HKLRD 856).

15.  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 (unreported). For trafficking up to 10 grammes of ice, a term of imprisonment of between 3 to 7 years is called for.

16.  As regards trafficking in “heroin”, the tariff was laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370. For trafficking up to 10 grammes of narcotic, a term of 2 to 5 years’ imprisonment is appropriate.

17.  In the present case, although the drugs were not mixed together, I am going to adopt the “combined approach” in view of the facts of this case and that the amounts of “ice” and “heroin hydrochloride” found were both at the low end of the first bracket of the respective tariffs. Having taken the combined approach and having taken into account that the bulk of the drugs was “ice”, I consider a starting point of 2 years and 3 months to be appropriate. However, as the 1st Defendant committed the present offence while on bail, I am going to increase the starting point by 3 months to reflect this aggravating factor. In other words, the starting point should be one of 2½ years.

18.  The greatest mitigation in the 1st Defendant’s case is her plea. I would give her a one-third reduction in sentence for that. Other than her plea, I do not see any other factors which would warrant a further reduction in sentence.

19.  2½ years reduced by one-third is 20 months’ imprisonment. This is the term which the 1st Defendant is to serve in respect of the 1^st charge.

Sentencing the 2nd Defendant

20.  The 2nd Defendant is not a first-time offender. As recorded above, between 1996 and 2010, she has appeared before the court a number of times because of her drug addiction problem. On the last occasion before I adjourned for the DATC report, Mr. Cheung who acted for the 2nd Defendant had asked for the imposition of a non-custodial sentence. However, given that the 2nd Defendant had been put on probation 4 times and had been sent to the DATC 4 times, I do not consider the imposition of a fine or other non-custodial sentence to be appropriate (see e.g. AG v Chan Tak King & Another [1989] 2 HKLR 428).

21.  Although the 2nd Defendant was charged with “inhalation of a dangerous drug”, that is no different from “possession of a dangerous drug” in terms of the seriousness of the offence (see R v Wong Chi Nuen, HCMA No. 22 of 1997, 19 March 1997, unreported). Further, in HKSAR v Limbu Khagendra, HCMA No. 1112 of 2001, 16 November 2001, the court considered that the Appellant was fortunate to have received a term of 5 months’ imprisonment upon conviction after trial for having been found in possession of traces of “ice” on a tin-foil. The court considered that the usual starting point was one of 6 to 9 months’ imprisonment for simple possession of “ice”.

22.  In the present case, I note that no drug was found on the 2nd Defendant at the time when the police entered the premises. It was upon the 2nd Defendant’s own admission that she was arrested. It was also to the 2nd Defendant’s credit that she has seemingly remained drug free since January this year. This may be an indication that she is, this time, indeed determined to quit her drug habit because she now realizes that she has a supportive family and a caring boyfriend.

23.  As indicated above, it is, however, inappropriate to deal with the 2nd Defendant by way of a non-custodial sentence. Having considered all the relevant circumstances and the matters urged upon me in mitigation, I am persuaded that a lower starting point could be adopted in the 2nd Defendant’s case. I therefore take 4½ months as the starting point for the 3^rd charge.

24.  In view of the 2nd Defendant’s plea, I am going to give her a one-third reduction in sentence. Other than that, there is nothing which could further reduce the term. Mr. Cheung has asked for a suspended sentence but I see no “exceptional circumstances” in the 2nd Defendant’s case which would warrant the imposition of a suspended sentence.

25.  4½ months reduced by one-third is 3 months’ imprisonment. This is the term the 2nd Defendant is to serve in respect of the 3^rd charge.