COURT: The defendant, Chan Pui-wa, pleaded guilty to the following three counts before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The first one was trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance; the 2nd count is attempting to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance and section 159G of the Crimes Ordinance, Chapter 200; 3rd count is theft, contrary to section 9 of the Theft Ordinance, Chapter 210.
The Summary of Facts admitted by the defendant
On 19 November 2021, police officers were on duty outside Room B, 16th Floor, 228 Fuk Wing Street, Sham Shui Po, we will call that Room B, when the defendant came out of it. The defendant was intercepted. Upon search of Room B, the following items were found. In the cupboard inside the bedroom:
(a) One greyish green container containing:
(i) one resealable plastic bag containing 27.4 grammes of a crystalline solid containing 19.2 grammes of methamphetamine hydrochloride, that is ‘Ice’, Exhibit E1;
(ii) two resealable plastic bags containing a total of 55.3 grammes of a solid which did not contain any substance controlled under Chapter 134, that is E2;
(iii) a silver spoon.
(b) One bluish green container containing four resealable plastic bags containing a total of 60.3 grammes of a crystalline solid containing 42.1 grammes of ‘Ice’, that is E3, and one resealable plastic bag containing 1.61 grammes of a solid which did not contain any substance controlled under Chapter 134, that is E4.
(c) Two brown boxes containing a number of resealable plastic bags each.
(d) A plastic bag containing a number of resealable plastic bags; and
(e) An electronic scale.
And on the bed inside the bedroom, two mobile phones with SIM cards were found, two keys and cash of HK$3,482.50.
Then inside the wardrobe in the bedroom, the following were found. They were items contained in a document folder belonging to a person called Yoon Jang Hyuk: A Hong Kong ID card; Hang Seng Bank Union Pay Card; Hang Seng Bank Visa card;Hong Kong Driver’s Licence; Shipboard Cargo Handling Basic Safety Training Certificate; Construction Industry Safety Training Certificate; and two name cards.
Exhibit E1 and E3 were five plastic bags containing 87.7 grammes of a crystalline solid containing 61.3 grammes of ‘Ice’.
The total estimated street value is $61,302.
The defendant was arrested for trafficking in a dangerous drug. Under caution, the defendant claimed that all the drugs were for her own self-consumption.
The defendant was further arrested for possession of an identity card of another. Under caution, the defendant said that those documents did not belong to her and were picked up from the street.
In a subsequent video-recorded interview, after being cautioned for trafficking in a dangerous drug, the defendant said the following: The ‘Ice’ means dangerous drug; the defendant purchased E1 to E4 from a male in a park in Lai Kok Estate, the male said that buying more would be cheaper, so the defendant bought one bag of ‘Ice’ for $20,000. She used the silver spoon and the scale to separate the bag of ‘Ice’ into smaller bags and kept them all in a cupboard near her bed; Room B was rented by her, she was alone living there; the scale also belonged to her, used for weighing the ‘Ice’; the keys found were for opening the entrance door and the mailbox of Room B; all the plastic bags belonged to her.
In a subsequent video‑recorded interview, after being cautioned for the offense of theft, the defendant said the following. She said that she picked up a wallet containing all those documents from the street. After returning home, she threw away the wallet and kept all the documents.
The police made an investigation of the owner, Mr Yoon. He said that on 9 September 2021 around 1 am, he alighted from a taxi at the ground floor of Pilkem Street, Yau Ma Tei, after having drinks with his friends. He checked his wallet, which he kept in his pocket and it was still there, and his mobile phone was still there. And he also had an Octopus card and cash of $800. He felt tired, and he slept in the street. Around 4 am, he woke up. He said at that time, the wallet was still with him, but the following items were gone. So he made a report to the police.
The missing item was his ID card, his Hang Seng Bank card; his Hang Sang Visa card, driver’s license, Shipboard Cargo Handling Basic Safety Training Certificate, Construction Industry Safety Training Certificate, two name cards, mobile phone, Octopus card, and cash of $800.
The defendant admitted that at the material time and location, she had committed the three offences charged.
Background and mitigation
According to the antecedent statement, the defendant was born in October 1995. She had a number of previous convictions including two for possession of dangerous drugs, one for trafficking in dangerous drugs, one for possession of instruments fit for taking drugs, two thefts, one possession of prohibited weapons, and one conspiracy to money laundering.
The defendant was released from gaol in 2020. The defendant claimed to have abused ‘Ice’ for nine years. The defendant is single and studied up to Form 6 level, unemployed at the time of the offence.
Mr Wong Po-wing, counsel for the defendant, gave more background information to this court. The defendant was 25 when she committed the present offences. She has her parents and an elder brother in Hong Kong. She studied up to Form 6 and worked as a waitress in a cafe in Tin Shui Wai. The defendant is single, but her close boyfriend died in a traffic accident on 13 August 2021.
The defendant was addicted to ‘Ice’ which was confirmed by urine tests upon her admission to Tai Lam. The defendant claimed that the ‘Ice’ in Exhibit E1, that is 27.4 grammes containing 19.2 grammes of ‘Ice’ was for her own consumption.
The defence asked for discount on account of this factor, citing the case of HKSAR v Wong Suet Hau. Mr Wong referred this court to the case of Tam Yi Chun and submitted the trafficking of ‘Ice’ in the 1st count would attract the starting point of 10 years and 5 months.
The average purity of ‘Ice’ in Exhibit E1 and E3 was 69.8 per cent. So if applying this percentage to the substance in Count 2, it will result in a notional amount of 39.72 grammes. And that is with a further discount for the no harm factor, citing the case of Cheng Ling Ling.
So adding the quantity of the ‘Ice’ in the 1st count and the notional amount in the 2nd count, the total amount would be 101.2 grammes. That will warrant a starting point of 11 years 6.4 months before taking into account the reduction for no harm factor.
Mr Wong submitted that the drug and substance were found in the flat she just come out of. There was no evidence of actual or direct trafficking. The defendant was an addict, she was cooperative with the police and rendered assistance to the police. The defendant was not someone of high rank in the dangerous trafficking hierarchy and can be treated as a courier.
And in relation to the 3rd count, theft, Mr Wong submitted that the defendant immediately owned up to the police that she picked up the items in the street. She kept them inside the flat with no attempt to use them for her own benefit.
The defendant, her mother and a staff member of the Hong Kong Christian Kun Sun Association wrote to this court asking for leniency. There is no need to reiterate the contents of their letters. Suffice it to say that after the defendant was released from gaol in 2020, she was determined to turn over a new leaf.
She was able to stay away from dangerous drugs, but when her lover was accidentally killed while riding a bicycle on 13 August 2021, the defendant was unable to accept the reality and the grief and resorted to take refuge behind ‘Ice’-taking again, and that resulted in her committing the present drug offences. The defendant is remorseful and asked for a chance to return to the society earlier.
Consideration for the sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of the offence on indictment is liable to imprisonment for life and a fine of $5 million.
A person convicted of an attempt to traffic in dangerous drugs is also liable to life imprisonment and a fine of $5 million on indictment. For the offence of theft, a person is liable to imprisonment for 10 years on indictment.
Now having considered Mr Wong’s submission and having regard to the authorities of Li Oi Yee and Cheng Ling Ling, I agree with the approach submitted by Mr Wong. Clearly, the mens rea for attempting to traffic a substance believed to be ‘Ice’ is the same as attempting to traffic ‘Ice’. But I will take into account the no harm factor in arriving at the proper starting point. I will adopt the six steps laid down in Herry Jane Yusuph.
The first step
The quantity of ‘Ice’ in 1st count of 61.3 grammes, which falls into the 10 to 70 grammes band in the case of Tam Yi Chun, with a starting point of 7 to 11 years.
With the average purity of 69 per cent for those 61.3 grammes being applied to the substance in the 2nd count, a notional amount of 39.72 grammes of ‘Ice’ will be arrived at. And the total amount of ‘Ice’ would therefore be 101.2 grammes, falling into the 70 to 300 grammes band of Tam Yi Chun, with a starting point of 11 to 15 years.
The second step
The defendant is clearly not the mastermind or occupying any high position, so I will treat her as a courier.
The third step
As a courier and given the circumstances of this case, I am of a view that within the band of 70 to 300 grammes, an appropriate starting point or notional sentence after trial is one of 11 years and 6 months. And having taken into account the no harm factor, the appropriate starting point is 9 years and 6 months.
The defendant’s claim that the whole of E1 was for her own consumption was not accepted by the prosecution. The defence decided not to pursue this issue, but submitted that a small portion was for her own consumption. Whilst the defendant was a drug addict, the amount for her own consumption was not substantial or significant enough for me to give her any further discount.
The fourth step
I need to consider aggravating factors. The defendant has previous drug-related offenses. In fact, she was sentenced to 5 years and 6 months’ imprisonment for trafficking in a dangerous drug in March 2018. I will enhance the notional sentence after trial by 6 months, bringing it to 10 years.
The fifth step
I now have to consider all the mitigating factors. The biggest mitigation is of course her timely plea, entitling her to a full one-third discount. I accept that she was devastated by the sudden and tragic death of her lover in August 2021, which caused her to resort to drug taking, and eventually led to the present conviction of the first two counts.
So apart from the discount for plea, there exists special circumstances on the papers which justify a lenient view to be taken of the fact and I will give the defendant a total discount of 45 per cent. So with a starting point of 10 years, a 45 per cent discount would result in 66 months, which is the same as 5 years and 6 months.
Now for the offence of theft, bearing in mind that the defendant kept the cards for around two months, there was still a likelihood that she might make use of them sometime in the future. Although I accept there was no evidence that she had actually used them up to the time of arrest.
I will adopt a starting point of 18 months. With the defendant’s previous similar convictions, I will enhance the starting point by 3 months. The enhanced starting point is therefore, 21 months. With the 45 per cent discount, the sentence is one of 11½ months.
The sixth step
So the last step, the sixth step as according to Herry Jane Yusuph is to consider the totality. Having considered the totality, I am of the view that a total sentence of 5 years 9 months will properly reflect the criminality concerned.
So for the 1st count, 5 years 6 months. 2nd count also 5 years 6 months to run concurrently, both of them. The Count 3 is 11½ months, 3 months of which to run consecutively to Count 1 and 2, so making a total of 5 years 9 months’ imprisonment.