HKSAR v. Chui Suk Kwan, Joey

HCCC 446/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 446 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one charge of possession of dangerous drugs. The drug was 13.46 grammes of a crystalline solid, containing 12.45 grammes of methamphetamine hydrochloride, commonly known as 'Ice'.

The facts that the defendant admitted show that she was stopped by the police who were on patrol at Sai Yee Street, Mongkok. The police officers became suspicious as the defendant and a male, Law Yick-leung, were acting furtively before they intercepted them.

On searching the bag carried by the defendant, police found a mass of white tissue wrapped around a resealable transparent plastic bag which was closed with adhesive tape and contained suspected dangerous drugs.

After arrest and under caution, the defendant claimed that it was Law who had just thrown the white mass of tissue paper into her bag and she did not know what it was.

Later, in a video-recorded interview, the defendant claimed that Law had asked her to put the tissue paper in her bag while he made a telephone call. She did not know what was in the tissue and it was only when the police officer showed her the article that she realised it was a packet of dangerous drugs.

She said she had been taking 'Ice' by using the bottle method for seven to eight years. She took drugs three to four times a month, spending HK$200 to HK$300 a month.

Subsequent analysis by the Government Chemist confirmed the nature and quantity of the drug as set out in the charge. The estimated retail value of the dangerous drug at the date of the arrest was HK$7,672.

The defendant had the dangerous drugs in her possession for her own use.

The defendant has a criminal record which began in 1998 with a conviction for possession of dangerous drugs and she was made the subject of a Probation Order. Other drug convictions occurred in 2000 and 2008. Other offences on her record are breaches of Probation Orders and in 2004, she was sentenced for four offences relating to deception, fraud and obtaining by deception. She was given a total sentence of 12 months’ imprisonment. In 2001, she went to DATC for breaches of probation.

As section 54A of the Dangerous Drugs Ordinance Cap 134 requires the court, before sentencing a person convicted of an offence under section 8, to obtain a DATC report to see whether the defendant was a suitable subject for the DATC programme, mitigation and sentencing were adjourned until today, that is 23 October.

That report gives details of the defendant’s maiden family and also her own husband and children. The defendant will turn 40 on 22 November 2015. She was born in Hong Kong and was an only child. Her parents divorced in 1993. She married in 1998. Since 2012, the defendant and her husband having been living in a public housing unit with her son aged 16, and three daughters aged 6, 4 and 2. I am advised today that the son is in fact living with relatives.

The defendant received Form 4 schooling and at the age of 18 began working first as a clerk, then as a clerical assistant until mid-1986 when she became unemployed. From 1997, she worked in various retail jobs but from October 1998, she became a housewife supported by her husband. He, unfortunately, went to prison in December 2002 and thereafter the defendant relied on CSSA.

The defendant’s drug habit began in 1998, allegedly stopped while she was pregnant with her son who was born in July 1999, but began again after his birth. The defendant took 'Ice' and ketamine. She was first sentenced to DATC in 2001 and managed to stay out of trouble for the supervision period. The defendant committed a number of deceptions for which she was sentenced to 12 months’ imprisonment in 2004. She was discharged from prison in November 2004. She was imprisoned in March and discharged in November.

Her drug-taking continued as can be seen from her criminal record. In October 2008, she was convicted of a section 8 offence and was sentenced to 4 months’ imprisonment suspended for three years. In 2015, she was charged with another deception case for which she was granted bail. That case is still outstanding. An earlier case of possession of an ID card belonging to another, allegedly committed in 2014, is also outstanding.

The DATC report confirms that the defendant is drug-dependent, suitable for the DATC programme and that there is a place available for her. I am advised by her counsel that the defendant is prepared to accept a DATC order. I’m also advised that the husband is in work, and quite well-paid work, as a construction site worker and that will presumably continue.

The maximum sentence for an offence of possession under section 8 of the Dangerous Drugs Ordinance is 7 years’ imprisonment and a $100,000 fine. The starting point for sentence is in the range of 12 to 18 months for a quantity that a bona fide user would normally have in his or her possession. I refer to Mok Cho Tik [2001] 1 HKC 261.

A DATC order would normally run between 2 and 12 months depending on the subject’s response to the programme. There is a compulsory supervision period of 12 months post-release. The Commissioner of Correctional Services also has a power of recall for any breaches of the supervision.

In the ordinary course of events, an immediate sentence of imprisonment would be imposed for an offence such as this. The DATC order is just rehabilitative in its effect and is one way of dealing with the defendant. It is a balancing exercise as to which course should be followed. Although the defendant is considered suitable for the DATC programme, that does not qualify her automatically for a DATC order.

The defendant has been under a DATC order before, in2001, and it appears that she was able to comply with the supervision requirement after her release in January 2002. She had no drug conviction thereafter until 2008, although I accept that for part of that time she was serving a sentence for the deception convictions.

I note that the drug convictions are comparatively minor and that she has no trafficking offences. I note also that she had a relatively small amount of dangerous drug. For her plea of guilty, her age and her family responsibilities, I consider it desirable that she be given what she should consider to be her last chance to rid herself of her addiction because it is ruining her life and the lives of her children.

Accordingly, I make a DATC order in respect of the defendant for this offence.

I do impress on the defendant that this is the last chance she is likely to be given from any court.