HKSAR v. CHEUNG LAI FONG, JOEKY

DCCC 31/2021

[2021] HKDC 1651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 31 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The dangerous drugs in Charge 1 are:-

(i)  1.22 grammes of a mixture containing 0.98 grammes of heroin hydrochloride; and

(ii)  0.36 grammes of a crystalline solid containing 0.35 grammes of methamphetamine hydrochloride.

3.  The dangerous drugs in Charge 2 are:-

(i)  2.94 grammes of a mixture containing 1.25 grammes of heroin hydrochloride; and

(ii)  0.06 grammes of a solid containing heroin and morphine.

Facts

4.  At around 1:52 am on 8 September 2020, when being intercepted and enquired of by the police officers outside Flat H, 8/F, Penta House, Nos 190-192 Tai Po Road, Sham Shui Po (“the Flat”), the defendant was found to be in possession of the dangerous drugs as listed in Charge 1 as follows:-

(i)  Two red plastic bags containing two pellets containing a total of 0.98 grammes of a mixture containing 0.79 grammes of heroin hydrochloride, which were spat out from the defendant’s mouth;

(ii)  One blue plastic bag containing one pellet containing a total of 0.24 grammes of a mixture containing 0.19 grammes of heroin hydrochloride, which were taken out by the defendant from her underwear; and

(iii)  One piece of tissue paper wrapping two transparent resealable plastic bags containing a total of 0.36 grammes of a crystalline solid containing 0.35 grammes of methamphetamine hydrochloride, which were taken out by the defendant from her right hip pocket.

5.  Together with those drugs, one mobile phone and cash of HK$3,000 were also found on the defendant.

6.  The defendant was arrested.  Under caution, the defendant said that she received HK$3,000 to pack heroin and “ICE” and deliver them to others.

7.  Immediately following the defendant’s arrest, on the strength of a search warrant, the police conducted a search at the Flat and found the dangerous drugs as listed in Charge 2 and other relevant items as follows:-

(i)  One plastic spoon;

(ii)  One electronic scale;

(iii)  20 white plastic bags and about 50 transparent plastic bags;

(iv)  One red plastic jar containing the following items (v)  to (ix);

(v)  One resealable plastic bag containing 0.74 grammes of a mixture containing 0.44 grammes of heroin hydrochloride;

(vi)  One resealable plastic bag containing (a)  one resealable plastic bag containing 0.26 grammes of a mixture containing 0.03 grammes of heroin hydrochloride and (b)  one plastic wrapping containing 0.06 grammes of a solid containing heroin and morphine;

(vii)  One resealable plastic bag containing 0.17 grammes of a mixture containing 0.13 grammes of heroin hydrochloride;

(viii)  One resealable plastic bag containing 1.57 grammes of a mixture containing 0.49 grammes of heroin hydrochloride; and

(ix)  One pellet containing 0.20 grammes of a mixture containing 0.16 grammes of heroin hydrochloride.

8.  Under further caution, the defendant said that the electronic scale and the plastic bags were for packing heroin to be delivered to others.

9.  In a subsequent video-recorded cautioned interview, the defendant said that she lived alone and had the only key to the Flat.  The heroin found on her body and in the Flat were bought by her and the methamphetamine found on her body was for her own consumption.  She usually bought heroin from another person and repackaged it in plastic bags in about one gramme each.  She then placed the plastic bags in her mouth and re-sold them to others at Tung Chau Street Park.  The cash found on her was given by another person for her to pack and re-sell dangerous drugs, the electronic scale was for weighing the drugs and the packaging paraphernalia found was for packing heroin.

10.  At the material times, the defendant was in possession of the dangerous drugs seized for the purpose of unlawful trafficking.

11.  The street value of the heroin seized is HK$6,244 and the methamphetamine is HK$238.

Criminal record

12.  The criminal record of the defendant shows she appeared in court on 15 occasions amassing 18 convictions including five for possession of a dangerous drug and two for trafficking in a dangerous drug.  She was last sentenced for two counts of theft to a concurrent term of 4 weeks’ imprisonment on 25 July 2019. 

The defendant’s background and mitigation

13.  Counsel for the defendant told the court that the defendant is aged 50, single.  Her parents passed away respectively in 2006 and 2011.  She has 3 elder sisters who are distant from her.  She has been attached to her paternal aunt who raised her up and is living in a nursery home now.  The defendant is educated up to secondary three.  She had worked as a clerk, a cashier and a cleaner before.  She was last employed as a cashier but since 2019 during the time of social unrest and Covid 19 pandemic, she had become unemployed.  Prior to her arrest for the present offences, the defendant had been making monthly contribution in the sum of HK$5,000 towards the fees chargeable by the nursey home of her paternal aunt.  The defendant is a drug addict.  She was addicted to ICE since 2018 and had relapsed into taking heroin in the same year.

14.  Counsel cited several cases and made submissions on what she considered to be the appropriate sentence for each charge and for overall culpability.

Guidelines

15.  In R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal laid down guidelines for trafficking in heroin.  The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2 to 5 years’ imprisonment.

16.  In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the sentencing guidelines for trafficking in ICE.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

Consideration

17.  In sentencing the defendant, I have borne in mind the facts of the case, the background of the defendant and all the matters urged on the defendant’s behalf by her counsel.

18.  In my view, both charges should be dealt with together as far as sentencing is concerned as both offences can be said to be part of the same transaction.  I would therefore impose a global sentence for these two charges and order these two sentences to run concurrently.

19.  In calculating the sentence, I disregard the heroin and morphine found in the 0.06 grammes of a solid in Charge 2, which I am satisfied does not add to the culpability of the defendant in trafficking in remaining heroin and ICE.

20.  Having excluded the heroin and morphine in the solid as listed in Charge 2, the total weight of the remaining heroin narcotic to be calculated in this case is 2.23 grammes and the ICE narcotic is 0.35 grammes.

21.  Adopting the “individual” approach to sentence based on the quantity alone, the starting point for trafficking in 2.23 grammes of heroin would be just over 32 months’ imprisonment; and for 0.35 grammes of ICE would be just over 37 months’ imprisonment.

22.  Applying what has been referred to as the “absurdity test”, a starting point of 69 months’ imprisonment is clearly excessive for if all the drugs were ICE the starting point based on quantity alone would likely be just over 48 months’ imprisonment.

23.  I am satisfied that the “combined” approach to sentence is appropriate. I note that ICE and heroin are of similar potency, although ICE is regarded as being the more potent (HKSAR v Cheung Wai Man CACC 258/2017 para 38).  I take heroin, the most quantity, as the “base” drug to calculate the starting point.  Taking heroin as the base drug, I adopt a starting point of 32 months’ imprisonment.

24.  By applying the “conversion test”, a sentence ranging between just over 37 and just over 44 months would be arrived at depending on which drug was converted.  Applying the ratio test, the overall starting point would be about 39 months’ imprisonment.

25.  I adopt 39 months’ imprisonment as the starting point for each of Charges 1 and 2.

26.  I do not increase the starting point by reason of the fact that the defendant was also trafficking in 0.06 grammes of a solid containing heroin and morphine as listed in Charge 2, which can be regarded as very small of amount and I would ignore it for sentencing purpose.

27.  I note that the defendant has previous records of dangerous drug offences.  On the principle stated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the starting point may be enhanced on the basis of the defendant’s previous records.  However, in view of the fact that the defendant’s last conviction for trafficking in a dangerous drug was 7 years ago, I exercise my discretion not to enhance the starting point on this basis.

28.  The only real mitigating factor in this case is the defendant’s timely pleas.

29.  Full credit should be given to the defendant for her timely pleas. After one-third discount, the defendant is sentenced to 26 months’ imprisonment for each of Charges 1 and 2, and I order both sentences to run concurrently.

30.  In summary, the defendant has to serve a total term of 26 months’ imprisonment.