HKSAR v. CHIU SIU CHUI

DCCC 1098/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1098 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to three charges.  Charges 1 and 2 are trafficking in dangerous drug charges.  Charge 3 is the offence of possessing apparatus fit and intended for the inhalation of a dangerous drug.

2.   The facts of this case are straightforward.  At about 2.30 am on 21 September 2016 police officers noticed the defendant looking suspicious.  At that time she was on the ground floor of Hing Ping House in Tai Hing Estate, Tuen Mun.  In fact, she lived in Hing Ping House.  She was pacing backwards and forwards which aroused the police’s suspicion and they stopped her.  They then searched her.  In her left hand, they found one transparent plastic bag containing “Ice”.  The Ice is the subject of Charge 1 and is 1.43 grammes of a crystalline solid containing 1.39 grammes of Ice.

3.   As is the procedure, they then took the defendant upstairs to her home to search her home.  In her bedroom which is only accessed by the defendant, they found the following: in a box three transparent resealable plastic bags containing Ice.  That Ice is the subject of Charge 2, namely 8.27 grammes of a crystalline solid containing 8.03 grammes of Ice. 

4.   They also found paraphernalia usually associated with packing dangerous drugs for the purposes of trafficking.  They include straws, an electronic scale, lighters and small transparent resealable plastic bags in a large number.  They also found an Ice bong which is the subject of Charge 3 being an inhaling device fit and intended for inhaling Ice. 

5.   Under caution, the defendant told the police that all the drugs belonged to her and was for self-consumption.  She did not admit trafficking in Ice. 

6.   The total amount of pure Ice is 9.42 grammes and the estimated street value is $3,259.

7.   The defendant now admits trafficking and pleads guilty today.  This is her best mitigation. 

8.   Mr Mui has done his utmost to mitigate on behalf of the defendant. 

9.   The defendant is a woman with a clear record to-date.  She is now 41 years old and divorced.  She does have one child, a teenager, who is under foster parental care; the defendant is obviously not a fit mother.

10.   I have heard the defendant has been taking Ice for three years and this assertion would be supported by the fact that her urine test upon her remand was positive for amphetamine.  Moreover, the discovery of an Ice bong in her bedroom would suggest that she does consume Ice.  Therefore, I accept the defendant does consume Ice and I accept the mitigation that some of dangerous drugs in this case would be for her own self-consumption. 

11.   The defendant says 50 per cent of the drugs found was for her own consumption, but I do not need to quantify it for the purposes of sentence and for the purposes of what discount is deserved for that ground of mitigation.

12.   There are guidelines from the Court of Appeal for trafficking Ice, and I have referred myself to The Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, and I have been referred to by defence counsel to HKSAR v Tam Yi Chun CACC 524/2011.  Essentially, the relevant guideline in this case concerning this quantity of Ice is where between naught to 10 grammes is trafficked, a 3 to 7 years’ starting point would be appropriate.

13.   Here, the 9.42 grammes would almost attract the 7-year starting point threshold, and I have to consider the mitigation which I accept that part of the Ice was for her own consumption.  I have been referred to and considered the two authorities, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 as well as HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450.

14.   The Court of Appeal is of the view that a discount would be applicable to the starting point if a sentencing court accepts that part of the drugs is for own consumption.  A discount can be between 10 to 25 per cent of the starting point depending on factors relevant to each individual case. 

15.   Lastly, there is then how I would come to the relevant starting point where there are two charges of trafficking dangerous drugs with two amounts relating to possession on the same day such as is the case here.  I thank counsel for their input.  In my view, it is sensible and fair to add up the dangerous drugs of Charges 1 and 2 and take a global approach of that total amount, yet ultimately still sentence for each offence according to the quantity in each charge.

16.   Defendant, please stand up.

17.   To reach what I consider an appropriate starting point, I have taken into account the defendant’s plea, age and mitigation, the quantity of dangerous drugs, and, lastly, the defendant’s clear record.  

18.   Having taken all those factors into account, I take a starting point of 6 years’ imprisonment for the total amount of Ice here.  Because I accept that part of the dangerous drugs was for the defendant’s own consumption, I will reduce that starting point by 15 months which is a discount of just over 20 per cent.  That leaves a starting point of 57 months.  For the defendant’s plea today, she is entitled to a discount of one-third from that starting point.  After that discount is applied, it is reduced to 3 years and 2 months.

19.   I will sentence the defendant as follows.  For Charge 1, I impose a sentence of 2 years’ imprisonment.  Charge 2, I impose a sentence of 3 years and 2 months’ imprisonment.  For Charge 3, I impose a sentence of 3 months’ imprisonment.  I order all three charges to be served concurrently.  Therefore, the total sentence is one of 3 years and 2 months.  Do you understand that sentence? 

DEFENDANT: Yes.