HKSAR v. SO PUI SHAN

DCCC 173/2022

[2023] HKDC 625

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 173 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon her own guilty plea and agreement to amended Summary of Facts of 3 charges:

(i)  trafficking in dangerous drugs, contrary to section 4(1)  (a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge);

(ii)  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); and

(iii)  possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drug Ordinance, Cap 134 (3^rd charge).

Facts

2.  At about 22:53 hours on 22 July 2021, police entered the address in the charge sheet (“the Flat”). The defendant was then seen holding a brown handbag and she admitted the same belonged to her, in which there was a red velvet bag with 4 resealable transparent plastic bags containing a total of 11.8 grammes of a mixture containing 9.44 grammes of heroin hydrochloride as well as 2 foil packs containing a total of 5 tablets containing 0.06 gramme of midazolam.

3.  The defendant was arrested for trafficking in dangerous drugs. Under caution, she said that these drugs were owned by her for sale.

4.  On the desk in the Flat, police found:

(i)  8 packets containing a total of 1.52 grammes of a mixture containing 1.23 grammes of heroin hydrochloride;

(ii)  2 packets containing a total of 0.19 gramme of a mixture containing 0.16 gramme of heroin hydrochloride;

(iii)  9 foil packs containing a total of 9 tablets containing zopiclone, contained in 1 transparent resealable plastic bag;

(iv)  2 bottles inserted with a plastic straw and a glass tube with a bulb shape at one end, containing respectively 8 millilitres of a liquid containing 0.19 gramme of a solid which upon drying contained 0.12 gramme of methamphetamine, and 11 millilitres of a liquid containing 0.09 gramme of a solid which upon drying contained methamphetamine; and

(v)  1 lighter.

5.  On the cabinet of the Flat, police also found 1 electronic scale and 1 plastic container containing 260 empty resealable transparent bags.

6.  Upon inquiry, the defendant confirmed that she lived at the Flat. She was arrested for trafficking in dangerous drugs. Under caution, she said that the heroin hydrochloride and the zopiclone were owned by her for sale, the electronic scale and the resealable transparent plastic bags were used by her to pack the drugs.

7.  She was arrested for possession of apparatuses fit and intended for the inhalation of a dangerous drug. Under caution, she said that the 2 bottles were used by her to consume drugs.

8.  Government chemist confirmed the narcotic contents of the drugs seized and the bottles could be used as inhaling devices.

9.  The estimated street value of the drugs in her handbag was $15,790.60 and that of the other drugs seized was $2,288.07.

10.  Under caution in the video-recorded interview, she admitted herself being a drug addict and that the drugs were purchased for self-consumption as well as sale. She would weigh the drugs with the electronic scale and pack the drugs with the resealable transparent plastic bags.

Criminal Record

11.  The defendant has 12 previous criminal records, involving convictions of 16 charges, of which 5 is dangerous drug related.

Mitigation

12.  The defendant is aged 45. She is single and received education up to Form 3. She used to work as a saleslady but she became unemployed since 2015 due to the closure of the business of the employer.

13.  At the time of her arrest, the defendant was receiving CSSA in a monthly sum of $4,900 and she was unemployed.

14.  Defence counsel submitted that the records reveal that the defendant was convicted of dangerous drugs related offences 22 years ago. She was last sent to DATC by the court in July 2012 and her last conviction relating to dangerous drugs was in November 2015.

15.  It was submitted by defence counsel that the defendant has a long history for addiction for heroin and that she would sometimes consume the same together with midazolam and/or zopiclone. She relapsed taking drugs again after her release from DATC in 2013. Depending on her financial status, the defendant would also consume “Ice”. Because of her drug addiction problem, she was unable to make her ends meet and therefore she has foolishly resorted to trafficking in dangerous drugs to earn fast money. It was submitted that the defendant is now deeply remorseful as to what she has done and for making her sister in distress.

16.  Defence counsel conceded that following the sentencing guideline in the Court of Appeal case in R v Lau Tak Ming and Another [1990] 2 HKLR 370, the sentencing starting point in this case in relation to 10.83 grammes of heroin hydrochloride is approximately 61 months’ imprisonment. For the 5 tablets containing the 0.06 gramme of midazolam in the 1^st charge, the sentence is within the court’s discretion.

17.  As for the 2^nd charge which involves the possession of the 9 tablets of zopiclone, defence counsel referred this court to 2 cases HKSAR v Yeung Kwan Hung, CACC 217/2010 and HKSAR v Wong Lai Kuen, DCCC 707/2018, where the court considered 3 months’ imprisonment as sentencing starting point for possession of 10 and 105 tablets of zopiclone respectively.

18.  Defence counsel also urged this court to impose a sentencing starting point of 3 months’ imprisonment for the 3^rd charge, following the case R v Law Sing [1996] 4 HKC 477.

19.  She invited this court to impose concurrent sentence for the 3 charges and to give the defendant one-third sentencing discount to reflect her guilty plea.

20.  She said that the urine test performed on 25 July 2021 confirmed that the defendant was tested positive to amphetamine, benzodiazepine and opiate, indicated that she had consumed “Ice”, midazolam and heroin before her arrest.

21.  She also urged this court to accept that part of the dangerous drugs in Charge 1 is for the defendant’s own consumption, and that this court should exercise discretion to award her some sentencing discount to reflect this element and to pass a lenient sentence on the defendant.

Discussion

22.  Before sentencing, this court has carefully considered all that was said in mitigation on behalf of the defendant.

1^st charge

23.  The maximum sentence on conviction of this charge upon indictment is a fine of $5 million and to imprisonment for life. Trafficking in dangerous drugs is a serious offence and in usual circumstances, personal background and circumstances is not considered a valid mitigating factor.

24.  The Court of Appeal case Lau Tak Ming referred to by defence counsel laid down the band for sentencing a defendant for trafficking in heroin. Following that guideline, the sentencing starting point for trafficking 10.83 grammes heroin is approximately 60 months and 21 days’ imprisonment.

25.  Apart from heroin, the defendant also trafficked midazolam.  The number of tablets seized at the scene is 5 tablets, as such this court would enhance the sentencing starting point slightly to 61 months’ imprisonment.

26.  It is settled law that where a defendant trafficked in a variety of dangerous drugs, the same amounts to an aggravating feature in sentencing. For this reason, the court will enhance the sentence starting point by 5 months, bringing the sentencing starting point to 66 months’ imprisonment. Although the defendant has 5 previous convictions relating to dangerous drugs, none of which is similar to this charge.

27.  The most useful mitigation in this case is the defendant’s own guilty plea, for which she is entitled to full one-third sentencing discount which brings the sentence to this charge to 44 months’ imprisonment.

28.  This court accepts as submitted by defence counsel, the defendant is using part of the drugs for her own consumption. For this reason, the court is willing to exercise its discretion and to discount the sentence by 4 months’ imprisonment.

29.  The defendant is therefore sentenced to 40 months’ imprisonment for this charge.

2^nd charge

30.  Any person convicted of this charge is liable to a fine of Level 6 and to imprisonment for 2 years.

31.  This court is willing to accept the contention by defence counsel that the sentencing starting point for this case shall stand at 3 months’ imprisonment.

32.  The defendant is therefore sentenced to 2 months’ imprisonment by reason of her guilty plea.

3^rd charge

33.  Any person convicted of this charge is liable to a fine of Level 3 and, subject to section 54A of Cap 134, to imprisonment for 3 years.

34.  The defendant has 1 previous similar conviction in year 2015, for which she was sentenced to 2 months’ imprisonment.

35.  Again this court is willing to accept defence counsel’s contention that the appropriate sentencing starting point is 3 months’ imprisonment for this charge.

36.  The defendant is therefore sentenced to 2 months’ imprisonment by reason of a guilty plea.

Totality Principle

37.  Considering the totality principle in this case, this court is of the view that 40 months’ imprisonment is a just and proportionate sentence on the defendant’s overall culpability in the case.

38.  Accordingly, the sentence for the 2^nd and 3^rd charge are to run totally concurrent to the sentence of the 1^st charge.

39.  The defendant is therefore sentenced to 40 months’ imprisonment in this case.