HKSAR v. Chua Hung Ming

HCCC 96/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 96 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to a single count of trafficking in a dangerous drug. He has agreed that in the evening of 25 November 2014 police intercepted him together with a female companion as he was about to enter his flat in North Point. Inside his flat, the police found three plastic boxes containing the drugs as specified in the count, consisting of 38.76 g of a crystalline solid containing 38.04 g of methamphetamine hydrochloride and 12 tablets of 1.12 g in weight containing 0.071 g of methamphetamine and 0.7 g of cannabis in herbal form.

2.The defendant upon being arrested and cautioned by the police said that the drugs were for his self consumption.  Later in a video recorded interview he further explained that the flat was rented by him and that all the drugs found there belonged to him.  He said he would buy the drugs from “Fei Lung” and would usually purchase about 36 g of Ice per month for about $3,000 to $4,000.  He said that the drugs were for his self consumption and for giving to friends or others for their consumption.  He explained that he sometimes would give drugs to his girlfriends and women in return for cheaper sexual services.  He said he used the electronic scale to weigh the drugs and the pliers to clip the drugs and packed them in plastic bags.  It is because of his admission that he intended to give the drugs to his friends for their consumption and to female companions in return for sexual services that he is guilty of the offence of trafficking even though he also said that the drugs were for his self consumption.  There were two inhaling devices in the defendant’s flat which he acknowledged were used for the consumption of Ice.

3.The estimated street value of the drugs at the time of the offence was $15,626. 

4.I accept for the purposes of sentencing, that whilst he intended to give some of the drugs to others for the reasons he has explained, he also intended to consume some of the drugs to satisfy his addiction. 

5.The defendant is 59 years of age.  He was born in mainland China and came to Hong Kong 1957 with his family.  He was married in 1989 and has two sons aged 32 and 28 years.  The defendant has stated in his antecedents statement that he has been a heroin addict since the age of 15 years.  There is no doubt that he has an addiction problem as evidenced by his criminal record.  He has prior criminal convictions for possession of drugs in 1976 and 1981.  It would appear they were relatively minor offences because he was fined on both occasions.  In 1976, he was convicted of a drug offence and given a DATC order but this has obviously not helped him in ridding his drug addiction.  I am informed that he is now addicted to Ice and that was confirmed at the time of his arrest as he tested positive for amphetamine.  In 1986 and 1996, he was convicted of offences relating to violence.  Again he received relatively minor penalties for both.  In 2013, he was convicted for possession of drugs for which he received 6 months’ imprisonment.  This was for possession of a quantity of Ice. 

6.It appears after that his marriage broke down as he moved out of the family home and at the time of the offence lived alone.  I am informed that for the last three to five years he has worked at a property agency earning $8,000 to $9,000 per month.  One of his sons also provides him with additional funds every month.  I am also informed that he buys his drugs on a monthly basis for which it outlays $3,000 to $4,000 each month.  He normally consumes about 1 g of Ice per day. 

7.It was submitted by Mr Andrew Bullett, for the defendant, that the trafficking for which he has been convicted is based on his admission that he engages in social trafficking, in that he shares his drugs with female companions from time to time.  Mr Bullett urges me to give a substantial discount to any starting point imposed for the fact that the majority of the drugs were for self consumption.  He relies on the case of HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 which is a Court of Appeal decision concerned with sentencing of trafficking of drugs where part of the drugs were for a defendant’s own consumption and the offence involved social trafficking. I am prepared to accept, on the information before me, that part of the drugs were for self consumption.  The issue of social trafficking is more problematical because as the Court of Appeal observed trafficking is trafficking and making fine distinctions between different forms of trafficking and the motives behind them would undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.  The Court of Appeal did recognise that certain social trafficking cases, involving small quantities of drugs, could probably fall into the lower end of the applicable sentencing scale.  However, the Court of Appeal stressed that this factor should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking.  It seems clear that it will depend upon the facts and circumstances of the individual case as to whether the nature of the trafficking is such that it is appropriate to treat it differently from commercial trafficking. 

8.The difficulty I have with this case is that inside the defendant’s residence there was also found electronic scales and bags for packaging of the drugs.  Whilst it was submitted by Mr Bullett that this was for sorting out the drugs so that they were in similar strengths, it provides evidence that they were packaged this way for distribution to others. I am not prepared to accept that the drugs were not sometimes commercially trafficked as submitted. 

9.For the purposes of sentencing, I will add the narcotic content of the Ice that is contained in the crystalline solid and the methamphetamine in the 12 tablets.  The combined total is 38.111 g which I will round off to 38.1 g.  The 12 tablets also contained 0.7 g of cannabis in herbal form which is a very small quantity and therefore I will not factor it in the sentence in light of the quantity of Ice involved. 

10.According to the sentencing guideline case of AG v Ching Kwong Hung [1991] 2 HKLR 125 for trafficking in Ice, a starting point for a quantity of 38.1 g of Ice within the indicated tariff band is 8 years and 5 months’ imprisonment.  I will make an allowance for the fact that a significant quantity of the drugs were for the defendant’s own consumption but when doing so I bear in mind that he was still in possession of the drugs and that according to his admissions in circumstances where other persons may have had access to them.  I will therefore reduce the starting point to 7 years’ imprisonment which is reduced by one-third for the defendant’s plea of guilty to 4 years and 8 months’ imprisonment.  Accordingly, the defendant is sentenced to 4 years and 8 months’ imprisonment.  

Ms Claudia Ng, PP of Department of Justice, for HKSAR

Mr Andrew Humphrey Bullett, instructed by Cheung Chan & Chung, assigned by Director of Legal Aid, for the defendant