HKSAR v. CHOW MAN HONG AND OTHERS

DCCC1214/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1214 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendants have all pleaded guilty to two charges, one being trafficking in a dangerous drug and the other being possession of apparatus fit and intended for the smoking of a dangerous drug.

2.  The particulars of the trafficking allege the trafficking in three separate drugs with the following narcotic content: 43.3 grammes of cocaine, 0.46 grammes of herbal cannabis, and totally 5.55 grammes of ketamine.

3.  The 2nd charge alleges the possession of smoking devices, which are the five plastic bottles with 275 millilitres of a liquid containing cocaine. 

4.  The charges arise out of the seizure of these drugs at a flat at Flat C, 4th Floor, Wing Hing Mansion, 16 Granville Circuit, Tsim Sha Tsui.  The 2nd defendant was the tenant of that flat.  The flat had three rooms which were each occupied by the 1st to the 3rd defendants.  

5.  On 17 August, police were deployed outside the flat.  At about 10.45 in the evening, they intercepted the 3rd defendant and opened the doors of the premises with his key.  The 1st and 2nd defendants were inside the flat. 

6.  The 1st defendant was seen to discard two bags of suspected dangerous drugs.  He was arrested and cautioned.  He said the drugs belonged to the 2nd defendant and he just delivered them for her. 

7.  There was a house search was then executed. Inside the room occupied by the 2nd defendant, at various locations drugs were found and located.  These included Exhibit E1, 3 and 6, which contained cocaine, and E7, which contained herbal cannabis, which was found in a safe.  From a make-up table, more cocaine and ketamine was found, that is E11, 12 and 13.  There were also electronic scales, empty transparent bags and cash of HK$17,000-odd and 455,000 yen.  From the bed, there were five notebooks and 10 mobile phones.  In addition, there was a $20 banknote, which is Exhibit E36, with ketamine found on it. 

8.  The two bags discarded by the 1st defendant, which was E35 and 36, were retrieved.  They were found to contain ketamine.     

9.  In the kitchen, Exhibits 37 to 39, the five plastic bottles containing traces of cocaine were found and these would have been used for the consumption or the smoking of that drug.   

10.  Total value of the drugs seized was about $55,226.

11.  The 2nd defendant remained silent when questioned.  The 3rd defendant said that the drugs and equipment belonged to the 2nd defendant who has forced him to deliver drugs to repay a debt.  

12.  Later, the 1st and 3rd defendants conducted video interview recordings.  The 1st defendant said the 2nd defendant was his boss and he assisted her to deliver dangerous drugs because the 3rd defendant owed the 2nd defendant $13,500.  He would receive $1,000 as reward and he conducted deliveries up to five to six times a day.  The 3rd defendant said he delivered drugs for the 2nd defendant to set-off his outstanding debt.  He was paid $500 per day to deliver drugs, $300 being deducted for debt repayments. 

13.  I heard about the criminal records and antecedents of the defendants.  The 1st and 3rd defendants are young men.  At the time of their arrest, they were 18 years old, and the 2nd defendant is a young middle-aged lady with children. 

14.  The 1st defendant was placed on probation in 2009 for a case of handling stolen goods.  The 2nd defendant has some previous convictions for breach of condition of stay in the mid-1990s, for which she was fined, and then in 2004 for possession of an identity card relating to another person, for which she was sent to prison for 3 months.  The 3rd defendant is of clear record.        

15.  The convictions of the 1st and 2nd defendants seem to have little relevance to the proceedings today. 

16.  Because the 1st and 3rd defendants were young men and the 3rd defendant’s clear record, and the 2nd defendant had children to consider, I obtained background reports on the defendants.

17.  As far as the 1st defendant is concerned, the report shows him to be a young man aged 18.  He was brought up by his mother. His father died when he was young.  This defendant has been, certainly at school, a sportsman and had, to a certain extent, distinguished himself in sporting endeavours.  Clearly he did not build upon that and was eventually placed under supervision for the offence which I have already related.  The unfortunate conclusion of the probation officer is the defendant had not developed proper values of citizenship.  He failed to develop his sporting talent and had come under the influence of dubious peers.  He had not resumed his secondary education or held any stable jobs, and eventually obtained the habit of psychotropic substance abuse, and then became involved in this drug trafficking operation out of this flat.  So it is an unfortunate background for him to find himself involved in such serious criminality at such a young age. 

18.  The substantial mitigation for him would be his age.  He is still a very, very young man.  To a certain extent, his involvement in this was to assist his friend, clearly a misguided effort and clearly a person with little idea of legal responsibility. 

19.  As far as the 2nd defendant is concerned, she is a 39‑year-old lady with three children, aged 16, 15 and a young baby of 2 months.  She appears to have been a hard-working person in her life.  Her previous convictions appear to relate to her status in Hong Kong, having been an immigrant.  She has looked after her children, who were born in Hong Kong.  She also worked as a waitress and also karaoke, eventually working in a nightclub, and it appears that in that endeavour she has become involved with people of ill-repute one can say.  She is said to have been a hard-working woman who led a frugal life.  She tried hard to earn and save money for her family and to afford the mortgage payments.  She admitted she had greediness to earn fast money and did not seriously think about the consequences of her involvement in this kind of activity.  Her involvement in drug trafficking was because of undesirable associations.  I am told that she has learnt a bitter lesson.          

20.  Currently, I am told the child is with her in custody. Of course the child can remain for sometime in custody with her up to the age, I believe, of 2 years old, but she is unsure whether that is the right place for him to be at present.  

21.  In any event, the strong mitigating factor for this defendant is her position as a mother, a mother of a very young child. Any imprisonment of women in this position is a serious infringement on the position of the child and certainly her family.  It is a factor I have to consider in respect of her.          

22.  As far as the 3rd defendant is concerned, another young man of clear record, which is again a substantial mitigating factor for him.  He had what is described as a normal upbringing.  There was certain tightness, I am told, about the family finances, but they enjoyed a harmonious time together.  He has worked as a restaurant worker and warehouse worker.  At the end of 2010 he was associated with undesirable peers with triad backgrounds.  The defendant was greedy and tried to earn quick money and helped deliver the drugs.  He had also moved away from home without telling his parents.    

23.  The defendant expresses verbal regrets.  I am asked to consider his young age and clear record and he asks for leniency. 

24.  Now, as I say, all these defendants have mitigating factors that should affect their sentence.  The 1st defendant has his youth and inexperience; the 3rd defendant has youth, inexperience and hitherto no involvement in criminality.  The 2nd defendant has a hard-working past and also her position as a mother of teenagers and also a very young child.

25.  Nevertheless, they have clearly involved themselves in a serious form of criminality, especially the drug trading, which is the substantial case I have to consider today, and in the light of the quantities of drugs found in the flat that they were clearly trafficking in, one is bound, in their cases, to a certain extent, by the tariff sentences that have been laid down for these kind of offences. 

26.  The youth of both the 1st and 3rd defendant can mitigate that sentence but cannot really detract substantially, and similarly, the attitude of the courts of Hong Kong has been the fact that a mother has a very young child is a mitigating factor but cannot substantially mitigate the effect of the tariff sentences. 

27.  Looking at the drugs in question here, there are 43.3 grammes of cocaine.  The tariff for cocaine is in line with the tariff for trafficking in heroin and it is common ground here that that puts the sentencing tariff within the range of 10 to 50 grammes, which is a sentencing tariff of between 5 to 8 years’ imprisonment.  The quantity of herbal cannabis is small and does not affect that figure.  There is also a figure of 5.55 grammes of ketamine, which of course would warrant a prison sentence in its own right and would increase the total of drugs to some 48 grammes. However, I do not believe that the possession and trafficking in the ketamine in this case need substantially affect the tariff which I would adopt, which is in the range of 5 to 8 years’ imprisonment.         

28.  There is also of course the sentence on the 2nd charge to consider and I will deal with that when I pass sentence. 

29.  I have to consider what is the appropriate starting point for sentence in respect of each defendant.  The defendants were all jointly involved in a trafficking operation from this flat on the 1st charge.  The 2nd defendant seems to have had some executive responsibility for what was going on there, but they all seem to have been equally responsible for the trafficking operation.  I do not propose to distinguish between them, as it seems to me that all their mitigating factors are of equal weight and they are to a certain extent equally culpable in what has happened there.      

30.  I consider that on the 1st charge, looking at the sentencing range of between 5 to 8 years, I will adopt a starting point for sentence at 75 months’ imprisonment.  After deduction of one-third, which by my calculation is 25 months, that leads to a sentence of 50 months’ imprisonment on the 1st charge, and that is the sentence I will impose on each defendant on that charge. 

31.  On the 2nd charge, I will take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for each defendant.  I will also order that the sentences on the 2nd charge run concurrently to the sentences on the 1st charge.

32.  So the overall sentence for the 1st, 2nd and 3rd defendants on the 1st and 2nd charges will be a total of 50 months’ imprisonment.