HKSAR v. LEE CHI CHING

DCCC 890/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 890 OF 2015

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Reasons for Sentence

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1.  The defendant pleaded guilty to three charges: Charge 1, obstructing police officers; Charge 2, trafficking in dangerous drug; Charge 3, possession of offensive weapon.

2.  The facts admitted by the defendant are as follows. 

Charge 1

3.  On 6 April 2015 at around 12.05 am, PC 7278 and PC 9407 were outside Room 1601, Ching Yuet House, Ting Ching Estate, Tin Shui Wai (“the premises”).  They saw the defendant took out keys to open the metal gate of the premises.  When police officers revealed their police identities, the defendant immediately turned around and fled to the lobby on the same floor.  She threw the keys she held in her right hand out of the window in the said lobby. 

Charges 2 and 3

4.  Police officers later located and retrieved the keys from the podium of the building.  They gained entry into the premises using the keys.  They conducted investigation and searched inside the premises, during which the following items, inter alia, were seized from on top of a blue plastic box:

(a) From inside a purple metal box, two resealable plastic bags containing a total of 6.99 grammes of a crystalline solid containing 6.9 grammes of methamphetamine hydrochloride, commonly known as “Ice” (“the dangerous drug”);

(b) One extendable baton;

(c) 205 empty resealable plastic bags;

(d) Two electronic scales;

5.  The defendant was immediately arrested.  Under caution, she said that she possessed the dangerous drug for self-consumption and possessed the extendable baton for self-defence. 

6.  The baton could be extended when it was flicked.

7.  The estimated street value of the dangerous drug is about HK$3,000. 

8.  A police photographer later took 29 photos of the premises. 

9.  The defendant is aged 25.  She has criminal convictions for possession of dangerous drug and trafficking in dangerous drug in 2008.  The defendant’s antecedent statement reveals that she has separated with her husband since January 2015.  She has a 5-year-old daughter being looked after by the defendant’s mother. 

10.  In mitigation, Mr Davies, counsel for the defendant, said the defendant was a part-time manicurist before she was arrested, earning around 5,000 to 6,000 dollars a month.

11.  The defendant was a drug user.  It is said that a significant part of the dangerous drug in question was for her own consumption while she would sell some of them to her friends for a small profit to support her own drug habit. 

12.  Mr Davies asks the court to pass concurrent sentences for all the three charges as they were part and parcel of the defendant’s drug trafficking activity. 

Newton Hearing

13.  As the claim of own consumption was not accepted by the prosecution, a Newton hearing was conducted and the defendant gave evidence on this issue.   The defendant testified that she started taking ketamine in about 2006.  She quitted the drug habit when she was sent to a rehabilitation centre for the breach of a probation order in 2009.  She started to take “Ice” in 2012.  At the relevant time, she took “Ice” by inhaling the smoke from an “Ice” pipe.  She took it for five times a week, each time for about “0.5 to 0.6”. 

14.  The drug in question was bought from a person called Ah Kin in an amusement game centre for $1,500, about one or two days before the arrest.  She had consumed about 0.3 in the morning of the day of arrest.  She said she had an “Ice” pipe at home but it was thrown away by the police.  

15.  Under cross-examination, the defendant said her “Ice” pipe was thrown into the blue bucket in the toilet as shown in photograph No 9 of the police photo album which is not disputed.  It took place after her arrest and before the photographer took the pictures.  When the photographs were taken at the premises, the “Ice” pipe was still in the blue bucket.  She could not remember who threw the pipe into the bucket.  She has never complained to any courts about this misconduct of the police as she did not know she could do that.  She also said she had always intended to give evidence in court about her own consumption of these drugs. 

16.  While no complaint had been made, she once made “an inquiry” with a police officer who telephoned her to come to the police station.  She identified this officer as the officer assisting Mr Chandler, counsel on fiat, for the prosecution.  This officer is PC 9338.  She asked him why her “Ice” pipe was thrown away and not submitted to the court as evidence.

17.  The defendant agreed that before the arrest, she was returning home with two men.  These two men came with the intention of buying and consuming “Ice” at her home. 

18.  The prosecution called PC 9338 and PC 9407 to give evidence in rebuttal.  PC 9338 agreed that he once telephoned the defendant to come to the police station as the investigation by the Special Duties Squad was inadequate.  He intended to conduct a videoed interview with the defendant, however, she was not available for the interview.  He could not remember whether the defendant said to him about an “Ice” pipe as it was a long time ago.  On this basis, therefore, I accept the defendant might have mentioned about an “Ice” pipe to him. 

19.  PC 9407 was the exhibit officer in this case. He said there was no paraphernalia for smoking dangerous drug found at the premises.  He denied that any police officers at the premises threw away the defendant’s “Ice” pipe.

20.  Whether there was an “Ice” pipe or any smoking paraphernalia at the defendant’s premises at the time of arrest is an important fact in considering whether part of the seized drug was for the defendant’s own consumption.  The burden of proof is on the prosecution to prove beyond reasonable doubt that there was no such pipe at the premises.  It is noted that upon arrest, the defendant said she possessed the dangerous drug for her own consumption.

21.  However, I find the evidence of the defendant contrary to logic and common sense.  I cannot see any good reasons why the police officers at the premises should put the defendant’s “Ice” pipe into a bucket in the toilet.  The police officers at the premises would not know what the defendant would say in her defence in court.  They could not foresee whether the existence of the “Ice” pipe would help the police to prove their case or not.  There is no point for them to conceal this evidence. 

22.  Even if the police wanted to destroy the evidence of the existence of an “Ice” pipe, it is improbable that they would only throw it in a toilet bucket and let the defendant and the photographer see it in there.

23.  The defendant must have seen her lawyers in the Magistrates’ Court and in the District Court prior to the hearing before me. She said she had always intended to give evidence about her consumption of part of the drugs in question.  The existence of the “Ice” pipe must have occurred to her as a piece of important evidence to prove that some of the drugs were for her own consumption.  If it occurred to her that she should make an “inquiry” with the police officer who took over the investigation of the case, it is improbable that no complaint about the “Ice” pipe being thrown away by police officers has ever been made by the defendant to any magistrates or judges prior to the proceedings before me.

24.  I find the evidence of the defendant incredible and reject it.  I accept the evidence of PC 9407.  The prosecution has proved that no “Ice” pipe was found at the premises of the defendant. 

25.  Two electronic scales and 205 empty resealable plastic bags were found at the defendant’s home.  However, no equipment for taking the “Ice” was found.  The defendant’s previous convictions related to her addiction to ketamine.  Apart from her assertion in court, there is no evidence of her addiction to “Ice”.  

26.  Having considered all the evidence, I reject the defendant’s claim that part of the “Ice” seized was for the defendant’s own consumption. 

Charge 2

27.  Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal has set down sentencing tariff for trafficking in “Ice” in AG v Ching Kwok Hung [1991] 2 HKLR 125, as revised in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256.  The imprisonment band for trafficking of “Ice” up to 10 grammes is 3 to 7 years’ imprisonment.

28.  The quantity of “Ice” involved in this case was 6.9 grammes.  I take 66 months’ imprisonment as the starting point for Charge 2.

Charge 1

29.  The obstruction is a minor one.  I take 6 weeks’ imprisonment as the starting point.

Charge 3

30.  The charge is brought under the Summary Offences Ordinance.  The defendant possessed it at home in connection with her dealing with dangerous drug.  I take 6 months’ imprisonment as the starting point.  

31.  The usual discount for a timely plea of guilty is one-third reduction.  The defendant will get the full one-third discount for Charges 1 and 3.  However, a Newton hearing has been conducted and I reject the defendant’s evidence.  Time has been wasted and the defendant’s degree of remorse shown by her plea is diluted.  She should be given a reduced sentence discount (see HKSAR v Abdallah Anwar [2009] 2 HKC 197, CACC 304/2008). The defendant is given a discount of 20 months for charge 2. 

The Sentence

32.  The defendant is sentenced as follows: Charge 1, 4 weeks’ imprisonment; Charge 2, 46 months’ imprisonment; Charge 3, 4 months’ imprisonment.

33.  Charge 3 is a separate offence.  However, taking into account the principle of totality, I order that all the sentences in the three charges to run concurrently.  The total term of the sentences is therefore 3 years and 10 months’ imprisonment.