HKSAR v. CHU YIN LING

DCCC 607/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 607 OF 2009

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Reasons for Sentence

1.  The defendant pleaded guilty to 1 charge of trafficking in 6.67 grammes of heroin hydrochloride, 1 charge of possessing 94 tablets (1.39 gammes) of midazolam and a 3^rd charge of possession of apparatus fit and intended for smoking dangerous drug.

2.  The events happened in the evening of 11 January 2007 (a Thursday) shortly before 9.30pm. The defendant was seen coming out of room A of a premises on the 2^nd floor of 1025 Canton Road in Mongkok. When police entered room A for search, they found inside a tray on the bed, amongst other things, the following items:-

(i)  25 packets containing a total of 11.14 g of a solid containing 5.57 g of heroin hydrochloride;

(ii)  94 blue tables containing a total of 1.39 g of midazolam;

(iii)  a plastic bottle, tinfoil, candle and a lighter;

(iv)  a blue plastic stick which contained traces of heroin.

3.  The defendant kept in her trousers’ pocket 5 packets of powder weighing a total of 2.2 grammes which contained 1.1 g of heroin hydrochloride.

4.  When cautioned at her arrest the defendant told the police officers the blue tablets were for her own personal consumption while the “white powder” was for sale.

5.  When further cautioned the defendant said the “white powder” was both for her own personal consumption as well as for sale. The defendant further admitted she was on her way to deliver the 5 packets of heroin she had in her pocket.

6.  The content and the nature of the drugs were subsequently confirmed by the government chemist.

7.  Lau Tak Ming [1990] 2 HKLR 370 is still the current sentencing guide for heroin trafficking. For someone to traffick in a quantity of heroin of up to 10 grammes, he or she should expect a sentence of up to 5 years imprisonment.

8.  The defendant had 6.67 grammes of heroin hydrochloride in her possession for trafficking and 1. 39 grammes (94 tablets) of midazolam for her personal consumption. The appropriate term for trafficking in 6.67 grammes of heroin hydrochloride would roughly be a term of 4 years imprisonment. The just sentence for possession of 94 tablets of midazolam (1.39 g) for personal consumption would likely be a term of 6 – 9 months imprisonment after trial.

9.  From the information put forward in her mitigation, the defendant was born and brought up in Guiyang in the mainland. She married a HK resident in 1993 and obtained her one-way permit to come to live in HK in 1998. In 2002 she divorced her husband and married her current partner in Guiyang in 2005. She has no children from her marriage. She said she came to HK regularly from 2002 but was not gainfully employed. Her husband lives across the border in Shenzhen and was engaging in vegetable trade. She came to Hong Kong in Jan 2007 to engage in her drug trafficking activity to support her drug addiction.

10.  She has 1 previous conviction of possession of dangerous drugs in 1998 for which she was sentenced to a fine of HK$500, which defence solicitor has urged this court to accept the conviction to have been spent under s.2 of the Rehabilitation of Offenders Ord Cap 297.

11.  The 2 years delay in the present prosecution was occasioned by the defendant’s own fault when the defendant absconded from the territory after bail was granted to her by the police after her arrest.

12.  It her mitigation it was said the defendant was truly remorseful for her misdeed and she came back to Hong Kong to surrender herself in April this year. The defendant now wishes to return to China to see her mother at the earliest opportunity and urged the court for leniency.

13.  Defence cited 2 cases (Wong Yee Fung CA-473/2004; Poon Chi Wai MA-491/04) in support of the proposition that 3 to 9 months are the usual norm for sentence for possession of instruments fit and intended for drug consumption. Poon Chi Wai, of course, is a magistracy appeal dealing with an offence dealt with summarily. The current charges are charges proceeded by way of an indictment.

14.  Defendant also urged upon the court to consider reducing the sentence on account of the personal consumption of the defendant. In court the defendant suggested she had ½ of the heroin in her possession for her personal consumption and said her daily dosage of heroin was about 1 gramme. When asked further with reference to the documented dosage of 0.5 gramme per day as the average daily dosage of drug abusers, the defendant then reduced her daily dosage to 0.6 gramme per day. I do have reservation about the defendant’s sincerity about her daily consumption rate and her suggested quantity of drugs for her own personal use.

15.  She has no roots in HK since her divorce in 2002. She came back to HK in Jan 2007 to engage in her drug trafficking activity to support her drug addiction. Her strongest mitigating factors are her willingness to come back to Hong Kong to face her prosecution and her plea of guilty indicating her remorse. I was told she has gone through a drug detoxification  programme in the mainland during her abscondence from Hong Kong.

16.  I do not accept a substantial bulk of her heroin was intended for her personal consumption, but I do adjust the 4 years starting point down by 3 months to take into consideration that some of the drugs might have been intended for her own use.

17.  For the 94 tablets of midazolam, it was a charge of simple possession, I adopt a starting point of 9 months imprisonment.

18.  For her possession of instrument fit and intended for consumption of drugs, I adopt a starting point of 6 months.

19.  The sentences I do impose, giving her a 1/3 discount for her plea of guilty, are:-

(i)      charge 1 – 2 years and 6 months ( 2/3 of 3 years and 9 months)

(ii)     charge 2 – 6 months (2/3 of 9 months)

(iii)     charge 3 – 4 months (2/3 of 6 months)

20.  Charges 2 and 3 are substantially dealing with the same nature of activity of personal consumption. Taking totality into consideration, the sentences for charges 2 and 3 are to be served concurrently between them, but to be served consecutively with charge 1, i.e. the total period of 3 years imprisonment for all 3 charges.