HKSAR v. CHAN YIU CHUNG AND ANOTHER

DCCC960/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 960 OF 2010

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Reasons for Sentence

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1.  The 1st defendant, Mr Chan Yiu-chung, pleads guilty to two counts of trafficking in a dangerous drug, which are Charges 1 and 2 in the present case; while the 2nd defendant, Miss Cheung Ching-man, pleads guilty to one count of possession of apparatus fit and intended for the smoking of dangerous drugs, which is Charge 3.  The statements and particulars of offences are set out in the charge sheet and the court is not going to repeat them here now. 

Facts admitted

Charge 3

2.  On 17 May 2010 at about 2205 hours police officers executed a search warrant at a stone hut at DD116 Lot 3642 in Tai Shu Ha, Yuen Long.  Inside the living room the 2nd defendant was found holding a plastic bottle inserted with a glass tube and plastic straw.  The liquid inside the bottle was found to contain traces of methamphetamine, while the glass tube was found to contain 0.08 grammes of a solid containing methamphetamine hydrochloride.

Charge 2

3.  The 1st defendant drove his private car, registration number LK9702, to the premises, and both the 1st and 2nd defendant were arrested for trafficking in dangerous drugs.  The 1st defendant replied under caution that the dangerous drugs were all his, while the 2nd defendant said that the dangerous drugs did not belong to her.

4.  Inside the car the police found three resealable plastic bags hidden inside the plastic cover of the handbrake secured by a magnet.  They contained a total of 1.14 grammes of a crystalline solid containing 1.11 grammes of methamphetamine hydrochloride.

5.  Under reminded caution, the 1st defendant admitted that the dangerous drug was for selling to others.

Charge 1

6.  Inside the stone hut the police found in the sitting room five plastic bags containing 1.44 grammes of a crystalline solid containing 1.26 grammes of methamphetamine hydrochloride, and inside the bedroom, one plastic bag containing 2.17 grammes of a crystalline solid containing 2.12 grammes of methamphetamine hydrochloride.

7.  In the video record of interview held subsequently, the 1st defendant admitted that the dangerous drugs found inside the premises were for his own consumption, while those found insides the car were for sale.

8.  The 2nd defendant admitted using the bottle inserted with a glass tube and plastic straw for smoking “Ice”.

Criminal Records

9.  The 1st defendant has 21 previous convictions of which one was trafficking in a dangerous drug and eight were dangerous drug-related offences.  His last conviction took place on 3 November 2010 when he was sentenced to 2 months’ imprisonment, suspended for 12 months, for two traffic-related offences.

10.  The 2nd defendant has one previous conviction of a dangerous drug-related offence on 16 April 2009, for which she was put on probation for 12 months.

Drug Addiction Treatment Centre Report

11.  The court obtained a Drug Addiction Treatment Centre report for the 2nd defendant.  According to the report the 2nd defendant is aged 29 years, brought up in a working class family, and received education up to Form 2.  When she was young the mother was busy looking after the defendant’s elder sister who is mentally disabled.  She turned rebellious in 1991 and quit school in 1996 when she failed to be promoted to Form 3.  She had worked intermittently as a waitress in restaurants.  She got married in 1998 and was separated from her husband in 2001.  The son of the marriage, who is now 12 years old, is under the care of the ex-husband.

12.  The 2nd defendant started to fiddle with ecstasy after the breakdown of the marriage.  In 2007 she started a relationship with an “Ice” addict and became hooked to “Ice” herself which resulted in her being put on probation for 12 months for a dangerous drugs offence.  She stayed away from dangerous drugs and completed the probation order.  She did not take any dangerous drugs during the bail period of the present case.

13.  The medical officer who examined her is of the view that she is no longer a drug addict and is therefore not suitable for admission to drug addiction treatment centre.

Mitigation

14.  Counsel for the 1st defendant points out that there are sentencing tariffs for the offence of trafficking in a dangerous drug which the defendant had committed, but stresses that the scale of the operation was small, and as the 1st defendant had dangerous drug problems himself, the dangerous drugs in question was partly for his own consumption.

15.  The 1st defendant only intended to sell the unused dangerous drug to people he knew.  He is determined not to touch dangerous drugs again, being alarmed by the recent death of his younger brother which was caused by dangerous drug overdose.

16.  The counsel asks the court to take into account the guilty plea of the 1st defendant in imposing the sentence.

17.  The counsel for the 2nd defendant says that the 2nd defendant agrees to the contents of the Drug Addiction Treatment Centre report.  The 2nd defendant pleads guilty to the offence and is extremely remorseful.  She has the full support of her family and her fiancé who intends to marry her when things are settled.  The 2nd defendant will not relapse into taking dangerous drugs again.

18.  The counsel submits to court letters written by the 2nd defendant, her mother, her fiancé, and her younger brother.  In the letter the 2nd defendant expresses remorsefulness and determination to stay drug-free in future.  The mother says that the 2nd defendant went wayward because of influence of undesirable peers and she is now determined to keep away from them and to turn over a new leaf.  The fiancé and the younger brother both express good opinion of the 2nd defendant.  They all ask for leniency from the court.

19.  The counsel cites the case of R v Law Sing [1996] 4 HKC 477 which held that a sentence in the order of 3 months’ imprisonment was accepted tariff for cases of possession of apparatus fit and intended for consumption of dangerous drugs after plea.  The counsel, however, stresses that this case does not shackle the court’s discretion in sentencing.  He says that the circumstances of the 2nd defendant are different from those of the defendant in the authority, and the 2nd defendant has adequate family support to help her amend herself.  The apparatus involved in the present case was home-made and was not sophisticated in nature.  Counsel asks the court to impose a suspended sentence on the 2nd defendant.

Sentence

20.  As rightly pointed out by the counsel for the 1st defendant, the Court of Appeal has laid down clear sentencing guidelines for trafficking in methamphetamine hydrochloride, which is commonly called “Ice”, in the case of AG v Ching Kwok Hung [1991] 2 HKLR 125.

21.  According to the guidelines, for up to 10 grammes of “Ice”, the starting point is 3 to 7 years’ imprisonment.  The amount of “Ice” involved in Charge 1 and Charge 2 are 3.38 grammes and 1.11 grammes respectively.  The starting points are therefore 4 years 4 months’ imprisonment for Charge 1, and 3 years 4 months’ imprisonment for Charge 2.

22.  The court is of the view that there are no reasons not to follow these tariffs, but the court accepts that part of the dangerous drugs found inside the premises were for the 1st defendant’s own consumption and will give him discount for that.

23.  The court adopts a starting point of 4 years’ imprisonment for Charge 1, and 3 years 4 months’ imprisonment for Charge 2.  After giving credit to the 1st defendant for his guilty plea, the court sentences him to 2 years 8 months’ imprisonment for Charge 1, and 2 years 3 months’ imprisonment for Charge 2.

24.  The total amount of “Ice” involved in the two charges are 4.49 grammes which, if charged together, would attract a starting point of 4 years 9 months’ imprisonment.  Giving him discount for part of the dangerous drugs being for his own consumption and his guilty plea, it would result in a sentence of 3 years’ imprisonment.

25.  Taking this and the nature of the case into consideration, the court orders 4 months of the sentence of Charge 2 to run consecutively to that of Charge 1.  The 1st defendant is to go to imprisonment for 3 years.

26.  For Charge 3, counsel for the 2nd defendant rightly points out that a sentence in the order of 3 months’ imprisonment is held to be appropriate in the case of R v Law Sing on a plea of guilty.

27.  According to the Drug Addiction Treatment Centre report, the 2nd defendant is no longer a drug addict.  This shows that even though she relapsed into taking a dangerous drug again shortly after completion of the probation order, she managed to keep herself away from dangerous drugs during the bail period of the present case.

28.  The court accepts that this is a clear indication of remorsefulness and determination to stay away from dangerous drugs on the part of the 2nd defendant.

29.  Taking into account the support of the 2nd defendant’s family and fiancé, and the fact that she had been in custody for about 14 days, the court accepts the submission of the defence counsel that a suspended sentence is a useful and effective deterrent to the 2nd defendant to keep her on the right track.

30.  The court therefore sentences the 2nd defendant to 3 months’ imprisonment, suspended for 2 years.