HKSAR v. LAW NUM CHUN

DCCC 635/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 635 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant is convicted on her own plea for one count of trafficking in dangerous drugs, contrary to 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The drugs involved were 7.97 grammes of ice, 13.58 grammes of heroin and 4.68 grammes of midazolam.

The facts

3.  The facts to which the defendant admitted revealed that in the morning on 12 March 2013, police officers intercepted the defendant for enquiry in the vicinity of San Fung Avenue, Sheung Shui, New Territories.  Failing to produce her HKID card, the defendant led the police officers to her residence in San Shing Avenue.

4.  Upon search, 3 mobile phones, cash of HK$10,920 and 2 notebooks (with suspicious notes and numbers) were found inside her handbag.  Also inside a safe, the following items were found:-

(a) Some plastic sheets;

(b) a pile of 212 empty re-sealable plastic bags;

(c) 8 transparent plastic bags containing a total of 9.46 grammes of a crystalline solid containing 7.81 grammes of ice;

(d) 22 packets containing a total of 26.18 grammes of a mixture containing 13.58 grammes of heroin;

(e) 16 tablets containing a total of 0.16 grammes of ice;

(f) 334 tablets containing a total of 4.68 grammes of midazolam.

5.  Upon arrest, the defendant under caution admitted that she was a drug addict, some of the drugs seized were for self consumption whilst some were for selling for profit.

6.  In two subsequent video-recorded interviews, she admitted inter alia that she used the safe to keep cash and dangerous drugs; all the drugs seized were bought in Mongkok a few days ago at HK$23,000; sometimes she would sell heroin to drug addicts outside Shek Wu Hui Jockey Club clinic; the handwritings found in the notebooks were hers which showed the date and telephone numbers, the Chinese characters “male” stands for midazolam and “female” for heroin; the empty re-sealable plastic bags and sheets were purchased for practicing packaging.  She however later changed her version and claimed that all the drugs were for her own consumption.

7.  The estimated street value of the drugs seized was HK$32,523.

Mitigation

8.  The defendant aged 39 is a first offender.  She got divorced in 2010. Her son now aged 12 is under the custody of her ex-husband.  At time of arrest, she was unemployed and a non-CSSA recipient.  She was financially supported by her ex-husband and boy friend.  She claimed to be a drug addict.

9.  I have considered the contents of the mitigating letters written by the defendant, her ex-husband and nephew.

Sentence

10.  For trafficking in ice, where the narcotic content is up to 10 grammes, the sentence is in the range between 3 to 7 years’ imprisonment (AG v Ching Kwok Hung [1991] 2 HKLR 125, as amended in HKSAR v Capitania [2004] HKCU 926).

11.  For trafficking in heroin, where the narcotic content is from 10 to 50 grammes, it will fall within the band of 5 to 8 years’ imprisonment (R v Lau Tak Ming [1990] 2 HKLR 370).

12.  The tariff for trafficking in midazolam is the same as for trafficking in methaqualone.  For tablets up to 2,000, it is within the court’s discretion (AG v Chan Chi Man [1987] 2 HKLR 221).

13.  Without a doubt, trafficking in dangerous drugs is a very serious offence.  The presence of more than one type of drug in trafficking activities is an aggravating factor as the trafficker can cater for a wider market.

14.  Ice is more potent than heroin, though the quantity of heroin involved was larger than Ice.  Having considered the potency and quantity of drugs in question, I adopt a combined approach in sentencing.  Given the quantity of midazolam involved, I will disregard them for the purpose of sentence as they will have no significant effect on the overall sentence.

15.  For 7.97 grammes of ice, the appropriate starting point should be one of 5 years and 6 months.  For 13.58 grammes of heroin, the proper starting point should be one of 5 years and 3 months.  Should the whole quantity merely contain ice ie 21.55, the proper starting point should not exceed 8 years, under the band of 7 to 10 years.  Having considered all the circumstances, I adopt a starting point of 7 years and 6 months, ie 90 months.

Self-consumption

16.  In mitigation, it was advanced on behalf of the defendant that all the ice in crystalline solid form was for own consumption.  This proposition was rejected by the prosecution.  The defendant elected to give evidence in support of this proposition.  Thus a Newton enquiry was held to resolve the issue.

17.  After Newton enquiry, I reject her allegation of self-consumption. However the ruling only applies to the ice in crystalline solid form.  There remains ice in tablet form, ie 0.16 gramme and heroin.  In sentencing, I am prepared to accept that some of those drugs were for self-consumption.

18.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal articulated that “[w]e are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.  In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.  We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in”.

19.  Given the overall quantity involved, its value and all the circumstances, I find that the defendant is entitled to a discount of 10%. Accordingly, the sentence is reduced by 9 months to 81 months’ imprisonment.

20.  To reflect her guilty plea, she is entitled to further discount.  Nevertheless, given the fact that her testimony was rejected, she is not entitled to the conventional one-third discount.  I of course do not lose sight of the fact that the Newton enquiry finished in less than an hour’s time but, having fully realized the risk of affecting her discount, she should bear the consequence of her informed decision, otherwise every defendant is encouraged to put forward unfounded assertion in mitigation.  The sentence is therefore reduced by 22 months to 59 months, representing about 27% discount.

21.  Having considered everything urged upon me, there is no other mitigating factors that warrant any further discount.

22.  In the result, the defendant is sentenced to 59 months’ imprisonment.