HKSAR v. TSE CHIU YEE AND ANOTHER

DCCC 192/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 192 OF 2017

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REASONS FOR SENTENCE

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The charge

1.  D1 pleaded guilty to a charge of trafficking dangerous drugs, namely, 2.96 grammes of cocaine. 

2.  D2 also pleaded guilty to a charge of trafficking dangerous drugs, namely, 5.24 grammes of cocaine and 10.23 grammes of ketamine.

Summary of facts

3.  At about 6:50 pm on 7 November 2016, two sergeants saw a seven-seater, SP4370, arrived at 23 Ashley Road.  Thereafter, D1 and 2 alighted from the vehicle, entered the building, and came out from the building at 7:23 pm.  D1 and 2 were intercepted by the police when D2 was in the driver’s seat, while D1 opened the door of the vehicle.

4.  D1 discarded from her right hand:- a transparent plastic bag containing 0.59 grammes of cocaine, four plastic bags containing 0.74 grammes of cocaine.  Seven transparent resealable plastic bags containing 1.63 grammes of cocaine were found underneath the front passenger seat.

5.  During a body search, D1 was found in possession of a mobile phone and HK$27,891.  At the same time, two police took D2 out of SP4370 for investigation. 

6.  Inside SP4370, the following items were found:-

(1) a white tissue containing a transparent resealable plastic bag containing 5.24 grammes of cocaine were found inside the right storage compartment of the driver’s seat;

(2) a white tissue containing a transparent resealable plastic bag containing 1.03 grammes of ketamine; a transparent resealable plastic bag containing three other transparent resealable plastic bags containing 3.2 grammes of ketamine were found inside the upper left storage compartment of the driver’s seat;

(3) inside the lower left storage compartment of the driver’s seat, a white tissue containing a transparent resealable plastic bag containing 6 grammes of ketamine;

(4) on the driver’s seat, two mobile phones were found;

(5) on the front passenger seat, one mobile phone and the car key was also found.

7.  D1 and D2 were arrested for trafficking dangerous drugs.  Under caution, D1 stated that she did not know there were two types of drugs inside the car.  D2 said that all the drugs belonged to him and were for his own consumption.

8.  The estimated street value of all the dangerous drugs was about HK20,000.

Previous conviction

9.  D1 had a clear record.

10.  D2 has four previous convictions between 2008 to 2010, namely, indecent conduct towards child under 16, assault occasioning actual bodily harm, and claiming to be a member of a triad society.

Mitigation

11.  D1 is now 21 years of age, married in 2015, but is currently separated from her husband.  She has a habit of consuming cocaine since 2015.  About 50 to 60 per cent of the drugs was for her own consumption.

12.  The prosecution does not take issue that part of the quantity of the cocaine in D1’s possession was for her consumption. 

13.  She worked as a sales in a fashion shop, earned about $60 per hour. 

14.  In her own mitigating letter, she said that she is now remorseful.  She regrets for her wrongdoing.  She has learnt a hard lesson.  She promises that she will stay away from drugs and her bad peers. She asks for a chance to turn over a new leaf.

15.  Her mother’s letter also pleads for leniency on her behalf. 

16.  She has a regular donation of monthly $100 to a charitable organisation since April 2016.

17.  In March 2017, she signed up with the Department of Health for donation of organs.

D2

18.  He is now 23 years of age.  He is still single. Before his arrest, he was a driver by occupation.  He has formed a relationship with D1 and wished to marry her and, for this reason, he committed the present offence to earn quick money, but he was not a full-time trafficker.  About 50 per cent of cocaine and 20 per cent of ketamine were for his own consumption. 

19.  Mr. Wong also asks for a combination approach to determine the starting point.

Sentence

20.  As to D1, the quantity of drugs involved is 2.96 grammes of cocaine.  The applicable guideline from Lau Tak Ming [1990] 2 HKLR 370 stated that up to 10 grammes of cocaine is 2 to 5 years’ imprisonment.

21.  Miss Ku suggests a starting point of 2 years.

22.  I disagree.  Mathematically, the appropriate starting point should be 2 years 8 months.

23.  The prosecution accepted in writing that part of the cocaine was for her own consumption. 

24.  D1 was remanded in Tai Lam Centre since her arrest on 9 November 2016 and the urine specimen collection from her was on 10 November 2016; indicated that it was cocaine positive. 

25.  To this extent, I agree with the defence that part of the drugs was for her own consumption.

26.  In the recent authority of Hong Kong SAR v Liu Ming Sze, CACC 103/2016, there was a detailed discussion as to the percentage of discount from the starting point.  At paragraph 29 of that judgment, it said that:-

“The discount from the starting point taken for sentence that the judge afforded the applicant to reflect an element of self-consumption was within her discretion in sentencing.”

27.  In the present case, I allow a discount of 8 months from the starting point; that amounts to 25 per cent.  D1 is also entitled to a one-third discount.  Her sentence comes down to 16 months.

28.  Her monthly donation and her positive organ donation was of limited value and it was so insignificant in view of such a serious offence.  In my judgment, it does not amount to any further justifiable deduction of sentence.

29.  As to D2, he trafficked a cocktail of drugs consisting of 5.24 grammes of cocaine and 10.23 grammes of ketamine. 

30.  Mr Wong for the defence submitted that a combination of two types of drugs to determine the starting point should be considered.  The total amount of drugs for cocaine and ketamine is 15.5 grammes.  By applying Lau Tak Ming for cocaine, the sentence would be 5 years and 4 months, while, applying Hii Siew Cheng CAAR 7/2006 for 15.5 grammes of ketamine, the starting point will be 4 years 4 months.

31.  Mr Wong urged this court to take this approach and rely on the authority of Hong Kong SAR v Tsang Chung Keung [2015] 1 HKLR 450. 

32.  In response to Mr Wong’s submission, I expressed a different view, that, for 5.24 grammes of cocaine, the starting point will be 3 years 5 months.  Applying Hii Siew Cheng, CAAR 7/2006, for 10.3 grammes of ketamine, the starting point will be 4 years. 

33.  I rely on the authority of Hong Kong SAR, Ko Ka Hing [2009] 4 HKLR 856.  The Court of Appeal held that:-

“Where the ‘combined approach’ is taken, the court will rely on common sense in determining which type of dangerous drug is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point.”

34.  This is a drug case.  D2 was the driver at the material time.  He admitted that all the drugs inside the vehicle belonged to him.  A proper sentence should reflect the gravity of the offence.  When he embarked on this illegal activities, he should prepare to face a severe consequence.

35.  In view of the above mentioned case, I disagree with the defence to take the combination approach.  I am satisfied that the combined approach is the appropriate sentencing option.

36.  In terms of the quantity, 10.23 grammes of ketamine should form the basis of the starting point.  I therefore adopt a starting point of 4 years and adjust upward by 6 months for the cocaine portion, arriving at 4 years 6 months.

37.  Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principle as stated in HKSAR v Wong Suet Hau [2002] 1 HKLR 69. 

38.  When D2 was arrested, he claimed that the drugs were for his consumption.  In mitigation, he asserted that 50 per cent of the cocaine and 20 per cent of ketamine were for his own use. 

39.  D2 was remanded right after his arrest.  There was a urine test immediately taken after his remand.  Now, he said that the cocaine was the main dish while ketamine was the side dish.  However, the urine test report did not support his claim of self-consumption.  In the report, it indicated a negative result of all dangerous drugs.

40.  I refuse to accept that any part of the drugs was for his own consumption.  Therefore, he was not entitled to any further discount except the usual one-third.

41.  This case has been adjourned for D2 to provide some information to the police.  The defence accepted that the information was of no use to the police.  The defence also accepted D2 was not entitled to any further deduction of sentence. 

42.  To this extent, allowing one-third discount from 4 years and 6 months, his sentence is 3 years.