HKSAR v. WONG CHUNG YAN also known as WONG YEE FUNG

DCCC 455/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 455 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the two charges on the indictment. The first charge is possession of a dangerous drug, which is a total of 1.86 grammes of heroin hydrochloride, and the second is trafficking in a dangerous drug, which involves a total of 7.41 grammes of methamphetamine hydrochloride.

2.  The facts are agreed and are straightforward.

3.  The essential facts are that, on 4 March 2016, police officers raided a room that was occupied by the defendant.  On searching the room, they found dangerous drugs.  The dangerous drugs were a resealable plastic bag containing the heroin hydrochloride (that is the drug the subject of Charge 1) and, secondly, 10 small resealable plastic bags containing the other drugs, which we can colloquially call “Ice” (and that is the subject of Charge 2).  Various paraphernalia for consuming the drug were also found in the room.

4.  The defendant made admissions at the scene.  She admitted the nature of the drug.  She said the drugs in E1 (that is the heroin) was for her own consumption whilst the drug in E2 (that is the “Ice”) was for reselling. 

5.  She elaborated upon that at a subsequent interview.  The heroin had been purchased for $1,200 and the “Ice” for $1,100.   She elaborated her consumption of heroin, saying she spent about $300 a day on half a gramme of heroin.  She was a CSSA recipient, receiving $6,000 per month.  She said, as far as the “Ice” was concerned, there are two packages of drugs containing different amounts to be sold at different prices.  She already sold a large packet on 3 March.

6.  The facts show the estimated street value of all the drugs was $3,560.

7.  As far as the defendant’s background is concerned, she is currently aged 49. 

8.  She has a total of nine previous court appearances, mainly for possession of dangerous drugs.  She was convicted in 2004 on two offences of trafficking in a dangerous drug.  In respect of her convictions for possession of dangerous drugs, she has been sent for treatment at St Stephen’s Society, she has been sent to Drug Addiction Treatment Centre on a number of occasions and most recently in 2016 she was sentenced to a term of 12 months’ imprisonment.

9.  I did obtain a background report.  The conclusion is helpful, although somewhat unfortunate reading. 

10.  The defendant is described as a deep-rooted drug addict - and we can see that from her criminal record - with repeated criminal records dating back a number of years.  She has been in and out of Drug Addiction Treatment Centre or prison, has not grasped any opportunity to reform.  She told the interviewing officer she had abused both heroin and the methamphetamine hydrochloride and she would resell the methamphetamine hydrochloride for money to support her drug addiction.

11.  Her medical history shows she suffered from depression and hallucination and also weak immune system.  It describes her motivation to abstain from drug use to be low.

12.  It seems from this report that it is unlikely that the defendant has the strength of character to quit the drug on her own.

13.  I do note that this report sets the defendant out as being a consumer of the methamphetamine hydrochloride.  That was an issue in the course of mitigation.  I mean, in her admissions she had said the methamphetamine hydrochloride was for resale only, but it is clear from Drug Addiction Treatment Centre reports taken in both 2010 and more recently in 2016 that the defendant is a long-term consumer of both the drugs in the charges today.

14.  It is said in the Drug Addiction Treatment Centre report that the defendant takes “Ice” and heroin daily and the last dosages of those drugs, that they were on 4 March 2016, which was the date the defendant was arrested for these offences.

15.  It would appear from these reports that there is a strong support for the defence’s contention in mitigation that she would consume both types of drugs found in her room that day.

16.  I turn to the question of sentencing.

17.  The first charge concerns simply the possession of the dangerous drug, heroin hydrochloride.  It has been said that a conviction for this offence a person can, whether the drug is for their own consumption, can realistically expect a sentence range of between 12 to 18 months’ imprisonment, and I note on the last occasion the defendant appeared before the court for this offence she was sentenced to 12 months’ imprisonment.

18.  Given the defendant’s rate of consumption of this drug and the quantity of drug found, I do not believe that any issue of latent risk arises in relation to this charge.

19.  So, after deduction of one-third for her plea of guilty, on the first charge I will impose a sentence of 12 months’ imprisonment.

20.  As far as the second charge is concerned, the starting point for sentence will be determined by the narcotic content of the methamphetamine hydrochloride.  In this charge, that amount is - in the second charge, that is - 7.41 grammes.  This places it within the guideline for sentence of in the range up to 10 grammes, where the starting point for sentence can range from 3 to 7 years’ imprisonment.

21.  On the basis of a mathematical proportion, the starting point for sentence for the amount in this case, 7.41 grammes, should be in the region of 5 years and 3 months’ imprisonment, or 63 months’ imprisonment.

22.  The court should also consider whether there are any aggravating factors in respect of this charge. 

23.  The aggravating factor would obviously be the defendant’s previous conviction for an offence of trafficking in dangerous drug.  That was in 2004.  That is now, of course, 12 years ago, but it does establish that previous sentencing in respect of this offence has not deterred the defendant from committing further offences.

24.  I do not consider this to be a large aggravating factor, but it should be acknowledged in the sentence.  I will increase the starting point for sentence to 66 months’ imprisonment to reflect that aggravating factor.

25.  I now turn to the mitigating factors.

26.  There are two mitigating factors in respect of the second charge.  The first one is the defendant’s contention in mitigation that she would consume a part of that drug herself and the second factor is her plea of guilty to the charge.

27.  The first factor must be determined first, to what extent it should mitigate the starting point for sentence.  When that has been determined, the remaining starting point for sentence should be reduced by one-third. 

28.  It is settled law that, where a significant proportion of the drug would be used for personal consumption, the court can reduce the starting point for sentence.  The reduction is discretionary and would range between 10 to 25 per cent of the original starting point for sentence.

29.  The defendant has said in mitigation that one-third of the “Ice” would be for her own consumption, although, as I have noted, in her record of interview, she did not mention her consumption of this drug.  It is apparent from the Drug Addiction Treatment Centre reports taken that the defendant is a long-term consumer of this drug - in fact, of both drugs - and had taken both drugs prior to her admission into custody.

30.  I find there is no reason to doubt that the defendant would consume part of the methamphetamine hydrochloride as well as the heroin and that, given her long-term consumption and heavy consumption of both drugs, what can be described as a significant portion would be consumed.

31.  The quantification of the proportion or the percentage is discretionary.  I consider that a figure in the region of 15 per cent would be appropriate. 

32.  Given that the original starting point for sentence was 66 months, that would lead to a deduction in the range of 9 months’ imprisonment from the original figure.

33.  This leads to a starting point for sentence in Charge 2 of 57 months’ imprisonment.

34.  This is then followed by the one-third discount for her plea of guilty, which leaves a sentence, by my calculations, of 38 months’ imprisonment on the second charge.

35.  This then leads to a final sentencing as follows:

(1) On the first charge, 12 months’ imprisonment;

(2) On the second charge, 38 months’ imprisonment.

36.  Having regard to the fact the offences were committed at the same time on the same occasion, I consider that the sentences should be served concurrently one to another, giving a sentence of imprisonment for both offences of 38 months’ imprisonment.

(Discussion re existing term of imprisonment)

37.  What I shall order, as already part of that sentence has been served, that the existing sentence of 38 months’ imprisonment be served concurrently to her current sentence.