HKSAR v. So Pui Shan and Another

DCCC 598 & 668/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 598 AND 668 OF 2015

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REASONS FOR SENTENCE – D2 ONLY

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Introduction

1.On 4 November 2015, the 2^nd defendant in these proceedings pleaded guilty to the fourth charge, the only charge preferred against her in a charge sheet charging her and the 1^st defendant with a total of four offences.  The fourth charge was one of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

Facts of the case

2.In the early morning of 14 January 2015, the 2^nd defendant was found present in Room 220, Wing Ning House, Fuk Loi Estate, Tsuen Wan, when the police raid the unit.  In her right jacket pocket was found one plastic bag containing what was subsequently found to be 0.17 grammes of a crystalline solid containing 0.16 grammes of methamphetamine hydrochloride, commonly known as “Ice”.  She was arrested, and under caution, she told the police that she had inhaled dangerous drugs at the unit, using an “Ice” bottle there, and that it was Ar Bao who had given her the “Ice” for her own use.

DATC Report

3.According to the Drug Addiction Treatment Centre (DATC) Report, the contents of which were agreed, the 2^nd defendant was born in Fujian in December 1978, and she came to live in Hong Kong in 1986.  After her Form Five studies, apart from two years when she laid idle and another two years in which she depended on social welfare, she had held various jobs including working as a public relation personnel at night clubs in 2003 and 2004.  In early 2003, she started to abuse “Ice” and heroin and had to spend quite an amount of money to support her drug habit. 

4.Between June 2001 and August 2015, she had been convicted of possession of dangerous drugs on four occasions and of being in custody or control of counterfeit notes once, and had been sent to the DATC for four times; between November 2009 and May 2014, she had, subsequent to her discharge from the DATC, been recalled for further treatment on three occasions. 

5.Separated from her husband in 1999 (with whom she had a daughter now aged 17, who lived with the 2^nd defendant’s husband), the 2^nd defendant had had various relations since 2004 – mostly with drug abusers – and had given birth to four boys and one girl in this 11-year period, all of them now being looked after and cared for either by foster families or the Social Welfare Department. 

6.In these proceedings, the 2^nd defendant was granted court bail on 4 September 2015; her youngest daughter was born on 6 September 2015, who currently stayed at Princess Margaret Hospital still, pending further arrangement by the Social Welfare Department.  On 7 September 2015, the 2^nd defendant was discharged from hospital, and she resumed her drug consumption immediately, spending $200 a day on “Ice”.  Her last consumption of “Ice” took place on 3 November 2015, ie the day before she was due to appear at this court to answer the charge. 

7.The Medical Officer of the Correctional Services Department considered the 2^nd defendant a drug dependant; however, Rehabilitation Officer Kam Sio Peng recommended against a further DATC order for her due to her repeated failures to respond to the several courses of treatment there.

Mitigation

8.In his plea in mitigation, Mr Stephen Lam appearing on the 2^nd defendant’s behalf submitted that the 2^nd defendant had been a drug addict for over ten years and had not been able to rid herself of the vice habit despite repeated admittances to the DATC.  It was submitted that the quantity of “Ice” concerned was just sufficient for one single act of consumption by the 2^nd defendant, given her heavy addiction to this dangerous drug.  Mr Tam submitted that there was no risk of redistribution of the “Ice” or any part thereof, packed in one single plastic bag as it was. 

9.Mr Tam asked the court to take into account, in sentencing the 2^nd defendant, the remorse expressed in her guilty plea, which had resulted in the saving of court’s time, and her wish to turn over a new leaf and to become a responsible mother of her baby daughter.

Reasons for sentence

10.According to the case of HKSAR v Mok Cho Tik[1], the sentence tariff for possession of “Ice” ranges between 12 and 18 months’ imprisonment, which starting point can be enhanced if the offender is a recidivist or on account of the latent risk factor. 

11.The amount of “Ice” concerned in the 2^nd defendant’s case is 0.16 grammes; there is no appreciable latent risk to speak of in this case.  However, the 2^nd defendant is a repeat offender, the current conviction being the fourth of such convictions against her; and worse, she took “Ice” again while on court bail.

12.In all the circumstances, the appropriate starting point should be one of 14 months’ imprisonment. The usual one-third discount in sentence will be given to the 2^nd defendant for her guilty plea.  Little, however, in her background affords significant mitigation.

Conclusion

13.For the offence in Charge 4, of which the 2^nd defendant stands convicted, she is sentenced to nine months’ imprisonment.