HKSAR v. CHAN KAM TUEN

DCCC 147/2022

[2023] HKDC 441

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 147 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge), and a charge of possession of poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138 (2^nd charge). She also agreed to the amended Summary of Facts and was so convicted.

Facts

2.  At 1455 hours on 28 September 2021, a woman police officer, PW1, saw the defendant at the lift lobby of Ying Lai House.  After intercepting her, PW1 searched her and found nothing suspicious on her. 

3.  Later, with the defendant’s assistance, PW1 and other police officers entered her residence at the subject premises.  They found inside her bedroom:-

(a)  14 resealable transparent plastic bags containing a total of 12.1 grammes of a crystalline solid containing 11.8 grammes of methamphetamine hydrochloride (E1);

(b)  152 empty resealable transparent plastic bags; and

(c)  1 electronic scale.

4.  PW1 arrested the defendant for trafficking in a dangerous drug.  Under caution, she said that the drug was for her own consumption. 

5.  Later in the same afternoon, police found in a drawer inside her bedroom 2 resealable transparent plastic bags containing a total of 56 tablets containing zopiclone (a listed Part 1 poison)  (E2).  PW1 again arrested the defendant for possession of Part 1 poison.  Under caution, she said that the same was prescribed by her doctor but she lost the prescription. 

6.  Government chemist confirmed the narcotic contents of both E1 and E2. 

7.  The estimated average retail price of methamphetamine in September 2021 is $816 per gramme.  The estimated street value of E1 is approximately $9,873.60. 

Criminal Record

8.  The defendant had 9 previous records involving convictions of 15 charges, 11 of which is drugs related, 7 of which is similar to the 1^st charge and 3 of which is similar to the 2^nd charge. 

Mitigation

9.  The defendant is aged 43 and was born in Hong Kong.  She is single and lived with her mother before her arrest.  It was said that she was an office clerk at the time of arrest, earning $15,000 per month.

10.  It was said that despite being sent to DATC for 6 times in the past, she has not benefited and has failed to stay away from the drugs.  It was said also that she consumed methamphetamine hydrochloride daily at 0.6 grammes per day, and that as far as zopiclone is concerned, she took it to solve her insomnia problem. 

11.  It was said that the defendant committed the offence for the purpose of earning more money and that she bought the drugs for her trafficking and for self-consumption. 

12.  Defence counsel submitted that the defendant pleaded guilty to both charges, showing her remorse, and that it is the first time that she had been convicted of drug trafficking.  It has also been submitted that the defendant now understands the seriousness of the offence and she promises not to reoffend in the future.  Defence counsel also submitted a letter in mitigation from the defendant. 

13.  It was also submitted that about 25% of the ‘Ice’ seized was for the defendant’s consumption.  Defence counsel conceded that the same does not constitute a significant proportion of the drugs seized.  He urged this court to exercise its discretion and give the defendant a certain sentencing discount by reason that she is a drug abuser, consuming part of the drugs in question. 

14.  It is also conceded by the defence counsel that following the guideline in HKSAR v Tam Yi Chun, CACC 524/2011, that for trafficking the ‘Ice’ in question, the sentencing starting point is around 85 months’ imprisonment. 

15.  As for the 2^nd charge, defence counsel submitted that even if the court fines the defendant, the defendant is unable to pay the fine.  It was submitted that as the amount of zopiclone tablets involved is not too large, the defence counsel invites this court to order that the imprisonment sentence of the 2^nd charge to run wholly concurrent with the sentence of the 1^st charge. 

Discussion

1^st Charge

16.  On conviction upon indictment, the maximum sentence for the 1^st charged offence is a fine of $5 million and imprisonment for life. 

17.  Following the guideline in the Tam Yi Chun case, the appropriate sentencing starting point for trafficking 11.8 grammes of ‘Ice’ would be 84 months and 24 days’ imprisonment. 

18.  Defence counsel has conceded that no significant proportion of the drugs was for the defendant’s consumption. 

19.  Personal background of the defendant seldom affords the defendant a sentencing discount when faced with conviction of trafficking in a dangerous drug, which is a very serious offence.  It is also clearly understood by all courts that committing the offence for the purpose of funding drug addiction habit is not a valid mitigating factor. 

20.  The defendant has 11 drug-related offence convictions in the past but this court is not going to enhance the sentencing starting point. 

21.  By reason of the defendant’s guilty plea, she is entitled to full one-third sentencing discount which brings the sentence of the 1^st charge to 56 months and 16 days’ imprisonment. 

22.  This court also accepts that she is a drug addict and that she would use a small part of the drugs for her own consumption.  For this reason, this court is willing to exercise its discretion and give her a sentencing discount of 3 months and 16 days. 

23.  The defendant’s letter in mitigation demonstrated her remorse, but it is well established by authorities that remorse of the defendant has been subsumed in the one-third sentencing discount by reason of her guilty plea. 

24.  Accordingly, for the 1^st charge, the defendant is sentenced to 53 months’ imprisonment. 

2^nd Charge

25.  A person convicted of this charge is liable on conviction to a fine at Level 6 and to imprisonment for 2 years. 

26.  The defendant possessed in total 56 zopiclone tablets.  This court accepts that the defendant had it for her own therapeutic use. 

27.  She had 2 similar convictions in the past, the latest one being on 15 October 2021 for which she was sent to DATC. 

28.  The only viable option on sentence in this case is one of imprisonment. This court finds that 6 weeks’ imprisonment an appropriate starting point for this charge. 

29.  The defendant pleaded guilty and is entitled to one-third sentencing discount.  She is therefore sentenced to 4 weeks’ imprisonment for this charge. 

30.  Considering the totality principle, the court finds that 53 months’ imprisonment is a just and proportionate sentence to her overall culpability in this case.  Accordingly, the sentence of the 2^nd charge is to run wholly concurrent to the sentence in the 1^st charge. 

31.  The defendant is sentenced to 53 months’ imprisonment in this case.