HKSAR v. CHAN SZE WAI

HCCC 355/2020

[2021] HKCFI 1786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 355 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs before Magistrate Cheang Kei-hong and was committed on 28 December 2020 to the Court of First Instance for sentence.

FACTS

2.  A summary of the facts to which the defendant had admitted is as follows.

3.  At about 11:08pm on 14 January 2020, during an anti-narcotics operation in the Tin Shui Wai area, police officers in plain clothes saw the defendant came out of the ground floor lobby of a hotel situated at No 18 Tin Yan Road and stood outside of the hotel.  A man was seen cycling up to the defendant and their hands made contact.

4.  The police officers went up and intercepted them and revealed their police identities.  The defendant was searched and inside her right hand was a $100 banknote and a cigarette box.  The man was also searched and inside his hand was a transparent re-sealable plastic bag which was later found to contain 0.24g of a crystalline solid containing 0.24g of methamphetamine hydrochloride, known colloquially as ‘ice’.

5.  The defendant was arrested for selling the drugs to the man. Under caution, the defendant said she sold the packet of ‘ice’ to the man. (count 1).

6.  The cigarette box that the defendant was holding was found to contain four transparent re-sealable plastic bags, each containing dangerous drugs.  They were later found to be a total of 27.22g of crystalline solid containing 27.22g of ‘ice’ (count 2).

7.  The defendant was arrested for the drugs found in the cigarette box and cautioned again.  Under caution, she said that she would sell the four packets of ‘ice’ to others.

8.  At the time of arrest, the defendant had cash of HK$4,064 and two mobile phones.

9.  In the subsequent video recorded interviews, the defendant said she bought the ‘ice’ in this case from an unknown man for $5,600 and then divided them into different packets.  The man who bought the packet in count 1 was her friend and the $100 she was holding in her hand was payment for the ‘ice’ she sold to him.  The defendant said she intended to sell the four packets in the cigarette box.

PREVIOUS CONVICTIONS

10.  The defendant has one previous conviction for possession of dangerous drugs.  She was sentenced to be detained in the Drug Addiction Treatment Centre on 14 August 2018.  She was released on 21 January 2019.

MITIGATION

11.  The defendant is 25.  She is single and used to live with her parents and older sister, but had moved out to live in the hotel in question since December 2019 after disputing with her family.

12.  The defendant studied up to Form 4.  Counsel for the defendant Mr Danny Chan in his helpful written submissions suggests that the defendant’s education level “contributed to her vulnerability to temptation and inability to appreciate the severe consequences of trafficking in dangerous drugs.”

13.  Mr Chan tells the court that when the defendant was in Form 1, his father became heavily indebted and engaged in gambling activities, which caused further financial hardship for the family, resulting in them giving up private housing.  The defendant’s mother was also declared bankrupt and the defendant has since suffered from mental illness and had attempted suicide on several occasions.

14.  The defendant was overwhelmed by her family problems and was extremely stressed.  She was influenced by her peers at school and started to use drugs, which she gradually became reliant on over years of usage.

15.  The defendant left school at Form 4 and worked as a part-time clerk, cook, and hair salon trainee.  She became unemployed since 2014 and had to rely on her family for financial support.  The defendant committed the present offences hoping to relieve hers and her family’s dire financial situation.

16.  Initially, it was the defendant’s case that one of the packets of ‘ice’ was for her own consumption, being 6.51g.  Mr Chan pointed out that upon search of the hotel room that the defendant was staying, a full set of inhaling devices with residual so ‘ice’ were found, supporting the defendant’s assertion that she is a drug user.  Furthermore, the defendant had in her video recorded interview told the police that she had used ‘ice’ in the room on the day of the offence.  Mr Chan suggested that, when taken together with the defendant’s conviction in 2014 for possession of dangerous drugs, there is sufficient evidential basis for the court to find that some of the drugs on her were for self-consumption and that a discount should be given on that basis.

SENTENCE

17.  The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is that of a fine of $5 million and imprisonment for life.

18.  The applicable sentencing guidelines for trafficking in methamphetamine hydrochloride are found in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

19.  For the narcotic quantity of 0.24g of ‘ice’ in count 1, the applicable tariff sentence is slightly more than three years.  For the narcotic quantity of 27.22g of ‘ice’ in count 2, it is 97 months.

Self-consumption

20.  At the sentencing hearing, I told Mr Chan that I was not convinced that any of the drugs found on the defendant outside the hotel were for her self-consumption.  The reason of my thinking are that the defendant had unequivocally admitted to the summary of facts, which stated that she had told the Police that she intended to sell the drugs found inside the cigarette box.

21.  The facts also referred to the defendant telling the police under caution at scene that she intended to sell those drugs, as well as confirming in her later video recorded interviews that she intended to sell the four packets in the cigarette box to others.  Her said admissions contradict directly with what is being put forward by her through counsel.

22.  Furthermore, the defendant had told the police that she had used ‘ice’ in the hotel room on the day of the offence.  Given that she had been arrested after she left the room, the ‘ice’ she had smoked could not have been those she had on her.  Given that she already had a dose of ‘ice’ before leaving the room, it is also unlikely that she would be using another dose soon.

23.  I also pointed out to Mr Chan that this is a case where the defendant is able to identify which part of the drugs were for her self-consumption and which was to be for trafficking, and so the court can proceed to consider the proper sentence on this proposed factual basis.

24.  If we assume 6.51g of the entire drug haul was for the defendant’s self-consumption, the ‘ice’ for trafficking becomes 20.95g, which would attract a starting point of at least 92 months’ imprisonment.

25.  For simple possession, the usual sentence is 12 to 18 months’ imprisonment. This being the defendant’s second possession conviction, and given the quantity of the ‘ice’ involved, a likely starting point would be at least 15 months’ imprisonment.

26.  The total notional starting point would become 107 months, which is actually higher than the 97 months that I am minding to adopt.

27.  I, therefore, invited the defendant to consider entering the witness box to allow the court to understand better her position regarding her self-consumption.  Upon my invitation, Mr Chan informed me that he had already taken instructions and the defendant elected not to enter the witness box.  Mr Chan then proceeded to formally retract the defendant’s pursuit for a sentencing discount on the basis of self-consumption.

SENTENCES

Count 1

28.  I adopt a starting point of three years, discounted to two years’ imprisonment upon the defendant’s plea of guilty.

Count 2

29.  I adopt a starting point of 97 months’ imprisonment, discounted to 64 months’ imprisonment.

Totality

30.  Given the circumstances of the defendant’s possession of the drugs, I find that a global starting point could be used in application of the totality principle.  For narcotic contents of the total 27.46g of ‘ice’, the guideline starting point is 97 months.

31.  Bearing in mind all the circumstances of the case, I will order that the sentences be served wholly concurrently.  The defendant is sentenced to a total of 64 months’ imprisonment for the two counts.