HKSAR v. So Pui Shan and Another

DCCC 598/2015 & DCCC 668/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 598 and 668 OF 2015

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REASONS FOR SENTENCE – D1 ONLY

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Introduction

1.The 1^st defendant faced Charges 1 to 3 in a charge sheet charging her and the 2^nd defendant with a total of four offences.  On 5 November 2015, she pleaded (i) guilty to the first charge, namely possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”), (ii) not guilty to the second charge, namely trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Ordinance, but guilty to the alternative charge of possession of the dangerous drugs concerned, and (iii) guilty to the third charge, namely possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Ordinance.

2.The prosecution accepted the 1^st defendant’s plea to the lesser charge of possession of dangerous drugs in full satisfaction of the trafficking offence in the second charge.

Facts of the case

3.In the early morning of 14 January 2015, the police raided Room 220, Wing Ning House, Fuk Loi Estate, Tsuen Wan, and found the 1^st defendant there with another female (subsequently prosecuted in these proceedings as the 2^nd defendant).  In the 1^st defendant’s bed were found (i) an inhaling device consisting of a glass bottle containing a liquid with traces of methamphetamine, a glass tube, a plastic straw, a plastic tube and another glass tube (Charge 1), and (ii) one plastic bag containing what was later determined to be 0.34 gramme of a crystalline solid containing 0.33 gramme of methamphetamine hydrochloride, commonly known as “Ice” (Charge 3).  On top of a television set was found a plastic bag inside which was placed 0.79 gramme of a powder containing 0.32 gramme of methylenedioxymethamphetamine (MDMA) and 0.02 gramme of methamphetamine (Charge 2).

4.The 1^st defendant was arrested. Under caution, she said she was the only occupant of the unit, and she admitted that the “Ice” bottle was hers (Charge 1), that it was “Ah Bao” who placed the packet of dangerous drugs on top of the television set (Charge 2), and that the packet of “Ice”, worth $500, was given to her by Ah Bao in substitution of rental payment (Charge 3).

5.Following her agreeing to the Summary of Facts, the 1^st defendant was convicted on Charges 1 and 3 and of the alternative offence to Charge 2, namely possession of dangerous drugs.

DATC Report

6.Subsequent to the 1^st defendant’s convictions of the three offences, the court called for a pre-sentence report on the suitability of a Drug Addiction Treatment Centre (DATC) order.

7.According to the DATC report, the contents of which were agreed, the 1^st defendant was born in Hong Kong in July 1978 and had received education up to Form Three level.  She was brought up in a broken family and was victim of sexual abuse at home; in consequence, her father was imprisoned in around 1994.  Compounded with that was her mother’s mental illness rendering her unable to exercise effective parental control on the 1^st defendant; in the result, the 1^st defendant was put on a Care and Protection Order. 

8.The 1^st defendant had spent some three years without a job after dropping out of school.  Unable to hold a job on a regular and steady basis, she had been relying primarily on social welfare since 1999.  She had had, at different stages, two boyfriends, with each of whom she had given birth to an offspring: a son now aged 15 and a daughter now 13.  The two children had both been put in state care. 

9.The 1^st defendant’s drug history dated back to 1997 when she started taking heroin, and since then, she had committed various theft offences to finance her vice habit.  Prior to her current convictions, she had nine criminal records, seven of which were for theft charges while two were for the offence of possession of dangerous drugs. She had been sent to the DATC on three occasions: the first time, in July 2000; the second time, in August 2011; and the third time, in July 2012.  In addition, she had on two occasions been recalled to the DATC for further treatment; she was last released from Hei Ling Chau on 2 April 2014.

10.The Medical Officer of the Correctional Services Department found the 1^st defendant to be a drug dependant; however, Rehabilitation Officer Mr S P Kam did not recommend another course of treatment at the DATC for her in view of her long addiction history and her past failures to respond to this kind of treatments.

Mitigation

11.In his plea in mitigation, Mr Selwyn So appearing for the 1^st defendant submitted that the 1^st defendant had an unpleasant personal background and a troubled upbringing.  She had a long history of drug abuse and well understood her problem; she was, submitted Mr So, determined to deal with her drug addiction this time.  Mr So asked the court to give full weight to the 1^st defendant’s guilty pleas, by which she expressed remorse for transgressing the law.  It was submitted that the three offences took place at the same time and at the same place; Mr So asked the court, therefore, to treat the charges as forming part and parcel of the same offending.  Finally, Mr So invited the court to pass as lenient a sentence on the 1^st defendant as possible.

Reasons for Sentence

12.The usual starting point for Charge 1 is one of three months’ imprisonment.  There is no reason not to adopt this starting point.  The 1^st defendant is entitled to the customary one-third discount for her guilty plea.  In respect of Charge 1, she is sentenced to two months’ imprisonment.

13.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. 

14.In view of the quantities of narcotics and the packaging of the dangerous drugs referred to in Charges 2 and 3, the circumstances of their seizure by the police, and the 1^st defendant’s long-standing drug habit, there does not appear to be a solid ground for enhancing the starting point on account of the latent risk factor.  It seems from the agreed facts that Ar Bao could have – without the 1^st defendant’s knowledge or involvement – retrieved, at any time, the packet of dangerous drugs he placed on top of the television.  The correct analysis must be that the 1^st defendant and Ah Bao had been in joint possession of those dangerous drugs.

15.However, the 1^st defendant does have previous criminal records of possession of dangerous drugs.  In this case, Charge 2 concerns two types of dangerous drugs, namely 0.32 gramme of MDMA and 0.02 gramme of methamphetamine; it goes without saying that when a charge involves more than one kind of dangerous drugs, a higher starting point can be considered.  The narcotic contents of the “Ice” referred to in Charge 3 was 0.33 gramme.

16.In all the circumstances, the appropriate starting point for each of Charges 2 and 3 is 15 months, which is reduced (on account of the 1^st defendant’s guilty pleas) to ten months’ imprisonment.

17.Nothing in the 1^st defendant’s background affords viable or significant mitigation.  Pitiable as the 1^st defendant might have been, she has become a repeat offender and has been unable to mend her ways.

18.Having regard to the totality principle, it is ordered that the sentences in respect of the three offences are to be served concurrently.

Conclusion

19.For the offences in Charges 1 and 3 and the alternative possession offence in Charge 2, of which the 1^st defendant stands convicted, she is sentenced to ten months’ imprisonment.