HKSAR v. SO SUET CHUNG AND OTHERS

DCCC652/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.652 OF 2010

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Reasons for Sentence(D1)

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1.  There are 3 defendants in this case. D2 has however absconded and we are dealing only with D1 and D3, who is 17 years old.

2.  D1 faces charge 1, trafficking in dangerous drugs, namely 2.97g of Methamphetamine hydrochloride (“ice”); charge 2 trafficking in a liquid with 0.1g of a mixture containing methamphetamine; and charge 3 keeping a divan where “ice” was being sold to be inhaled.

3.  D3 faces charge 5 only, inhalation of a dangerous drug, “ice”, contrary to s.8(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap.134.

4.  They each pleaded guilty to their respective charge(s), admitted to the summary of facts and were duly convicted.

Facts

5.  D1 was intercepted by Police officers when exiting Room 1101 of Shin Nga House. 11 plastic bags of dangerous drugs (“P-1”) were found on him and he was arrested for trafficking in dangerous drugs. D1 said under caution that those were “ice” and were for his own consumption.

6.  Room 1101 was then raided and a Luk Man, a male and D3 were found inside inhaling “ice” with bottles. D1 was further arrested for keeping a divan. D1 claimed under caution that Room 1101 was Luk Man’s premises, but D1 was the person who supplied “ice” to Luk Man, the male and D3 for inhalation. Cash of $1,560 was found on D1.

7.  The male and D3 were arrested for inhaling dangerous drugs. D3 admitted under caution that she was taken to Room 1101 by D1 and she inhaled “ice” inside Room 1101.

8.  Police found a total of 6 plastic bottles containing liquid, some used tin foils, an electronic scales, a roll of tinfoil, some straws and a number of empty transparent re-sealable plastic bags inside room 1101.

9.  In a subsequent video recorded interview, D1 claimed that the “ice” found on him was bought from “Ah Keung” for $2,300 on 2^nd March 2010. D1 came to know Luk Man around a month ago when he went to Room 1101 with another friend to consume dangerous drugs there. Luk Man gave D1 the keys to Room 1101 to facilitate his access. The “ice” inhaled by Luk, the male and D3 on the day of their arrest were supplied by D1 free of charge. The bottle used by them to inhale “ice” was made by D1.

10.  On 3^rd March, 2010, Police obtained a record of interview from D3. Under caution, D3 admitted that on 2^nd March 2010 she went to Room 1101 at the invitation of D1 and she bought a packet of “ice” from D1 for $200. She then inhaled the “ice” with a bottle inside Room 1101.

11.  The estimated street value of the “ice” found on D1 when intercepted as at March 2010 was $1,982.88 (at $648 per gramme).

12.  The last paragraph of the summary of facts states that at all material times, D1 possessed P1 for the purpose of trafficking. D1 trafficked in the liquid “ice” by way of supplying them to Luk Man, the male and D3. D1 and Luk Man jointly kept a divan at Room 1101, Shin Nga House where methamphetamine hydrochloride was sold and inhaled therein.

Previous convictions

13.  D1 has 5 previous convictions; none of them are drug related.

Mitigation:

14.  D1 is 36 years old, born in china and came to Hong Kong in 1979. He received education in Hong Kong up to F.1. since left school, worked in Scaffolding worker on casual basis, earning about $30,000 per month, at around $1,000 per day. 2-3 months before his arrest he became unemployed and had to rely on social welfare.

15.  D1 and his family live in public housing estate. D1 has a 12 year old son from his first marriage who is living with his ex-wife and not keeping in contact. D1’s present wife is a housewife. They have a 6 year old daughter and a 10 months old son. D1’s mother, elder sister and wife are all in court to show support.

16.  The defendant does not have a similar previous record of conviction related to the present charge. The charges are serious. The amount of drug in the possession of the defendant can be viewed as fairly small. The defendant is also a drug addict and been taking ice for about 1 year. Since his remand in March 2010 D1 had not been taking any drugs.

17.  It is submitted by counsel for D1 that in relation to the 3^rd charge, as it is part and parcel of the activity in connection with the trafficking charges in 1 and 2, the sentence should be concurrent. The court should take into account D1’s guilty plea and that the amount of drug involved not large and should also take totality into consideration.

Sentencing tariff

Trafficking in “ice”

18.  AG v Ching Kwok Hung, CAAR 15/1990 applies and the sentencing tariff for trafficking in  “ice” of up to 12 grammes is 3 to 7 years’ imprisonment.

Keeping a divan

19.  Maximum penalty is fine of 5M and 15 years’ imprisonment. In the case of HKSAR v Lam Lai Chu Patsy, CACC 56/2003, the Court of Appeal was referred to a number of sentencing cases in relation to this charge and observed that the customary sentence is between 12 to 24 months’ imprisonment (at paragraph 8). The Court of Appeal did not however set down any guidelines.

20.  In that case, the appellant was the tenant of premises being kept as a divan and she received monetary reward of $1,000 for allowing it to be used, and then a daily reward of $400 for keeping the divan. The appellant had 7 previous convictions, four of which related to the possession of dangerous drugs. A starting point of 20 months’ imprisonment was considered appropriate.

Sentence

Charge 1

21.  I have heard D1’s mitigation and there are no factors to allow me to depart from the sentencing guidelines. I adopt 48 months’ imprisonment as the starting point, reducing it by one third in recognition of D1’s guilty plea to 32 months’ imprisonment.

Charge 2

22.  In relation to charge 2, I adopt a starting point of 36 months’ imprisonment, reducing it to 24 months in recognition of D1’s guilty plea.

Charge 3

23.  I adopt a starting point of 15 months’ imprisonment, reduce it to 10 months for D1’s guilty plea.

Totality:

24.  Charge 1 and 2 to be served concurrently, 5 months of charge 3 to be served consecutively, total sentence is 37 months’ imprisonment.