HKSAR v. Sun Chi Man

DCCC 611/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 611 OF 2015

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Reasons for Sentence

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1.The defendant is a Madam Sun, and she has pleaded guilty to three charges, one of possession of a dangerous drug, one of theft, and finally a third charge of trafficking in a dangerous drug.

2.The facts of the offences have been agreed, I have convicted her.   

3.As far as the first offence was concerned, that was committed on 18 March 2015, when the defendant was intercepted in Nathan Road, and a search was conducted, and 40 plastic pellets containing drugs were found inside her shoulder bag.  When she was arrested, she said they were for her own consumption. 

4.Totally, there was 5.23 grammes of heroin hydrochloride with an estimated street value of around $3,500.

5.The second and third charges arose on 3 May 2015, police were conducting an anti-crime control at the vicinity of a shop called Mini So in Nathan Road.  The defendant was intercepted after she walked out of the shop.  And again, drugs were found on her.  In this case, there were five resealable plastic bags containing 164 plastic wrapped pellets, which contained the dangerous drugs, they were found inside her bag.   

6.Some other items were found in her bag such as pins and earrings and a pencil.  They were valued at $95, and they had been taken from the Mini So shop, and the plea of guilty of theft relates to the theft of those items from that shop. 

7.As far as the drugs found on her were concerned, there was a total of 19.74 grammes of heroin hydrochloride contained within them, and they had a street value of almost $13,000.  The defendant agrees, as far as those drugs were concerned, that she had them for the purpose of unlawful trafficking.

8.The defendant is aged 38 now.  She has a number of convictions recorded against her in the past, totally 15 occasions when she has been convicted of a number of offences such as theft and possession of dangerous drugs.  She has been to drug addiction treatment centre on a number of occasions, being sentenced to periods of imprisonment for possession of dangerous drugs and also for theft.  She has also committed burglary where she had a sentence of 2 years and 4 months, and a robbery in 2009, when she was sentenced to 4 years’ imprisonment, so she has a poor record of previous convictions.

9.The defendant has a history of psychiatric illness and general illness, and I obtained a background report upon her.  The contents of that report are helpful in understanding her predicament.  As I said, she is now aged 38.  The conclusion of the report said that the defendant was brought up in an intact Hong Kong family.  She was poor academically and quit schooling at secondary 2.  It says she has been wayward since she mingled with vice peers, as they are described, at the age of 15, and became susceptible to their kind of life.  She has tried various type of dangerous drugs, had a strong addiction to heroin triazolam for over 23 years, which has ruined her life.  She has eight drug-related and seven theft-related convictions, to lead into various forms of disposal by the courts, so she has been unable to learn from past experience under her peer influence.  

10.The defendant also has written letters to the court and presented certain certificates relating to her achievements while she was in prison, and also reports relating to her medical condition.  I have taken those into account in determining how to deal with her. 

11.As far as the medical reports are concerned, we find out from the report dated 5 October 2015 that two of her brothers were heroin abusers.  She herself had suffered from hepatitis C and bilateral deep vein thrombosis and uterine fibroid, which I am told led to a hysterectomy operation. 

12.Madam Sun has been known to mental health services since the year 2000, presented with features of dependence on multiple psychoactive substance, emotional instability, impulsivity, vague auditory hallucination and repeated deliberate self-harm.  She is diagnosed to have poly-substance dependence syndrome, borderline personality disorder.  She has had one previous psychiatric admission to the Prince of Wales Hospital in the year 2000 for detoxification.  At the end of August 2015, her mood was stable with some quasi-psychotic symptoms, sleep and appetite being fair.  She is on various medications to assist her this time.  It says she suffers from a borderline personality disorder and a history of poly-substance dependence syndrome, and has irregular follow up, and is maintained on psychotropics. 

13.Further medical reports from October of this year described her other problems.  She is described as having long-standing drug addiction history relating to heroin, amphetamine and benzodiazepine.  She had a hysterectomy in Princess Margaret Hospital in 2014.  She has a history of deep vein thrombosis, and is on antithrombotic treatment, with blood test regularly.  She has an unfortunate background as far as medical history is concerned. 

14.The summary that I could perhaps use for the defendant is she is shown to be a deep-rooted addict who has ancillary medical problems together with a suite of psychiatric problems which are either led to or exacerbated by her addiction.  It is a deeply saddening state of affairs, clearly her addiction is a medical and psychiatric problem. 

15.The tool court this court has to deal with people such as this are limited, and the reality is, the courts can only approach this on the basis of the imposition of custodial sentences, with the hope that this will further deter the defendant from her addiction, and also protect the public, at least for a period, from the fact that she maintains herself, so it would appear, by the sale of drugs, and also shares them with her friends. 

16.The approach to sentencing will be as follows. As far as the 1st charge is concerned, the defendant has pleaded guilty to possession of the drugs in question, and we know from the analysis that we are dealing here with a total of 5.23 gram of heroin hydrochloride.  The normal sentence for the possession of a dangerous drug can range between 12 to 18 months’ imprisonment.  Here, there are two further elements to consider, one is the additional element of there being a latent risk of the distribution of drugs to others, given the quantity; and also the defendant’s poor criminal record for this offence.  What I shall do is take the original starting point of 18 months’ imprisonment, I will add a further 3 months’ imprisonment for each of those elements, going to a final starting point of 24 months’ imprisonment.  From this I will deduct one-third for a plea of guilty, giving a sentence of 16 months’ imprisonment on Charge 1.

17.As far as the 2nd offence is concerned, it is, I think I can describe as a minor shoplifting offence, but it’s not the first time the defendant has been involved in offences of dishonesty.  I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty. 

18.Turning to the 3rd charge, the charge of trafficking, this is the most serious charge the defendant faces.  Mr Percy has mitigated on the basis that I should approach this as a case of social trafficking, that she traffics with her social group, and also approach this on the basis that the defendant would consume a substantial portion of these drugs.  She said at the time the drugs were for her own consumption. 

19.And secondly, I have the evidence of her addiction and consumption of drugs for some 23 years, and I think it could be said to be highly likely that she would consume any drugs that came into her possession, and so it is submitted that there should be a substantial discount from the original starting point for the fact that the defendant would consume substantial quantity of the drugs that she had in her possession. 

20.Having regard to the evidence before me, it seems to me that that submission is well-founded.  What I shall do is approach it this way.  The defendant has unlawfully trafficked in a total of 19.74 grammes of heroin hydrochloride.  There are clear guidelines for sentencing based on the quantity of drugs concerned, and this places this quantity drugs in the range of between 5 to 8 years’ imprisonment.  There is almost 20 grammes here.  For that, I will take a starting point of 6 years’ imprisonment, which is 72 months’ imprisonment. 

21.As the question of self-consumption clearly enters into consideration here, I agree with the submission that she would no doubt consume a substantial quantity of the drug herself, a deduction of self-consumption can range between 10 to 25 per cent.  I consider that this case is one where the maximum level can be adopted, and will be a 25 per cent deduction from that point, that is 18 months’ imprisonment.  That takes the starting for sentence now down to one of 54 months’ imprisonment, and after her deduction for her plea of guilty, that leads to a sentence on Charge 3 of 36 months’ imprisonment.

22.The defendant pleaded guilty to three offences, and committed, as far as the 1st offence and 2nd and 3rd offences, are committed on separate on separate occasions, and are identifiable separate offences, and can be served consecutively.  I consider that to add them up would simply lead to a sentence that would be too long for this defendant.  The question of overall totality must be addressed, and I will do it as follows.  I am going to order that the sentences on the 1st and 2nd defences be served concurrently to each other, and that 12 months of those sentences be served consecutively to that on the 3rd charge.   

23.That gives an overall sentence of 48 months’ imprisonment for the three offences, and that will be the sentence of the court, 48 months’ imprisonment, or 4 years.