HKSAR v. Chan Sze Man, Iby

HCCC 146/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 146 OF 2015

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

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COURT: The defendant has been convicted on her own plea of one charge of trafficking in dangerous drugs. The Particulars of Offence provide that on 23 December 2014, at Po Tin Estate, Tuen Mun, New Territories in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 13.6 grammes of a crystalline solid containing 13.1 grammes of methamphetamine hydrochloride and 13.9 grammes of a mixture containing 10.4 grammes of heroin hydrochloride.

The Summary of Facts admitted by the defendant provides, inter alia, that at about 0124 hours on 23 December 2014, outside Block 1, Po Tin Estate, Tuen Mun, PC3609 saw the defendant carrying a dark-green handbag near the entrance of Block 1, Po Tin Estate. She was heading towards Po Tin Shopping Centre in quick paces while looking around furtively.

PC3609 intercepted the defendant. He then revealed his police identity and demanded a search of the defendant’s left hand tucked in the left pocket of the defendant’s trousers.

When the defendant opened her left palm, two separate items were discovered:

(a) one piece of white tissue, wrapping two transparent plastic bags containing crystalline solid, forming one packet; and

(b) one piece of white tissue with the number “14” written on it, wrapping a transparent plastic bag containing a mixture, and another packet (consisting of plastic cellophane wrappings and with adhesive tape) containing a mixture.

The first item mentioned above was subsequently analysed by a Government Chemist and found to contain a total of 13.6 grammes of a crystalline solid containing 13.1 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug. The second item mentioned above was also analysed by a Government Chemist and found to contain a total of 13.9 grammes of a mixture containing 10.4 grammes of heroin hydrochloride.

On the spot, PC3609 questioned the defendant of the nature of the two items. In reply, the defendant said:

“The packet without any writing on it is ‘Chu Yuk’ (‘豬肉’). The packet with the number “14” written on it is ‘Four Chai’ (‘四仔’).”

Upon being asked for clarification, the defendant said: “‘Chu Yuk’ is ‘Ice’ and ‘Four Chai’ is No. 4 heroin”. When probed further by PC3609: “To whom do these two packets of ‘Ice’ and heroin belong?” The defendant answered: “I got them for selling to other people.”

Then at about 0126 hours on 23 December 2014, PC3609 arrested and cautioned the defendant for the offence of trafficking in dangerous drugs. The defendant replied: “I understand. I sell dangerous drugs only because I have to support (my) family. Please give (me) a chance, do not arrest me.”

Then the defendant, escorted by the police, went to her residence for a house search. On a folding table in the living room of the defendant’s residence, PC3609 found and seized the following items:

(1) a pair of pliers;

(2) a plastic box;

(3) a stack of white plastic cellophane sheets; and

(4) a stack of transparent resealable plastic bags.

After a further caution administered by PC3609, the defendant said:

“The pair of pliers is for breaking items into smaller pieces. The plastic box is for holding the plastic cellophane sheets and the plastic bags. The plastic cellophane sheets are for wrapping heroin and the plastic bags are for holding ‘Ice’.”

In a subsequent video-recorded interview conducted under caution by PC3609, the defendant voluntary admitted as follows:

(1) The first item seized earlier at the scene contained the dangerous drug ‘Ice’.

(2) The second item seized earlier at the scene contained the dangerous drug heroin.

(3) Those two items of dangerous drugs were bought by her in the Mong Kok area on the previous night from a person, the particulars of whom she did not want to reveal and at a price she had forgotten.

(4) She had to take care of her son who was around 3 years old, as well as to look after her father-in-law. Hence, she thought of making money by means of selling dangerous drugs.

(5) Although she had thought of selling the dangerous drugs, she was not successful and she was then arrested by the police.

(6) As to the exhibits seized from her residence, the defendant confirmed:

(a) the pair of pliers was for breaking up the heroin;

(b) the plastic box was for storing the plastic bags; and

(c) the plastic bags and the plastic cellophane sheets were for packing ‘Ice’ and ‘Four Chai’.

(7) As to the cash of HK$1,050 found on her, the defendant said it was part of her allowance from the Comprehensive Social Security Allowance of HK$9,000 per month.

(8) Otherwise, she was unemployed and had no other income.

(9) As to her residence, she had rented it for $2,800 per month, while her son was being looked after by her father-in-law.

(10) The defendant confirmed she had been in the habit of taking drugs in the past 10 years, consisting of heroin and ‘Ice’ of a total of about one gram per day.

(11) The defendant pleaded to give her a chance because she just wanted to support her family, otherwise she would not have committed such a crime.

As in December 2014, the retail value of 13.6 grammes of methamphetamine hydrochloride ‘Ice’ was HK$5,943. As in December 2014, the retail value of 13.90 grammes of heroin hydrochloride was HK$11,203.

By way of personal background, the defendant is 38 years of age. She was born in Hong Kong. She had attained education up to lower secondary level. She was unemployed at the time of her arrest. I was told that the defendant has been addicted to heroin and ‘Ice’ for many years, in fact since she was 18. However, her counsel, Mr Alan So, expressly does not advance that part of the drugs seized were for her own consumption.

The defendant has a four-year-old son. At the time of her arrest, she was living with her son and her 78-year-old father-in-law. He is now looking after the defendant’s son. The father of the defendant’s boy is currently serving a sentence at the Drug Addiction Treatment Centre.

The defendant has a total of nine previous criminal convictions, involving 12 offences. Ten of those offences were drug-related, with one being trafficking in dangerous drugs. That was in 1998, for which the defendant was sentenced to 12 months’ imprisonment.

By way of mitigation, Mr Alan So, on behalf of the defendant, urged upon this court to take into account her guilty plea.

He also urged upon this court to be as lenient as possible based on her personal background. In this regard, a letter from the defendant dated 12 January 2016 was handed up to the court, the contents of which has been duly noted. In this letter, the defendant expressed deep remorse for having committed the offence. The letter also revealed that she had been suffering from depression and an ulcer in her leg since 2013. As a result, she was not able to work and had to rely on Comprehensive Social Security Assistance. She committed the offence in order to earn some extra income to financially support her son.

However, as has been pointed out by the courts on many previous occasions, family and personal circumstances of a defendant offer little mitigation in serious cases of drug trafficking, which call for heavy deterrent sentences in order to protect the public.

Mr So further submitted that part of the period in custody since the defendant’s arrest on 23 December 2014 had been spent in the Drug Addiction Treatment Centre as a result of a recall order, and that period will not, according to the Prison Rules, be counted for the purposes of calculating the amount of remission arising from the sentence to be imposed in this case.

However, as a matter of principle, I do not regard that as a matter that I should take into account in my sentence. The question of remission and the calculation thereof is a matter for the Commissioner of the Correctional Services Department and not for this court.

The defendant has been convicted on one charge of trafficking in dangerous drugs, namely 13.1 grammes of methamphetamine hydrochloride and 10.4 grammes of heroin hydrochloride. The total quantity of narcotics involved is therefore 23.5 grammes.

This case involves the defendant trafficking in two kinds of dangerous drugs which would were kept in separate packets. In fairness to the defendant, I intend to adopt the “combined” approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence.

The methodology of this “combined” approach is, first, to calculate the applicable sentence for the most serious drug, which is the ‘Ice’ drug in the present case, and then adjust the sentence upwards to take into account significant quantity of the other drug.

In the present case, I take the ‘Ice’ drug as the base of the sentence. The offence was committed on 23 December 2014, i.e., after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the ‘Ice’ drug. In the Tam Yi Chun case, for trafficking in between 10 grammes and 70 grammes of methamphetamine hydrochloride, the proper sentence to be imposed after trial was held to be 7 to 11 years’ imprisonment.

The quantity of ‘Ice’ seized in the present case is 13.1 grammes. Following the Tam Yi Chun case, I consider that the appropriate starting point for trafficking in 13.1 grammes of ‘Ice’ is 7 years and 2 months’ imprisonment.

Making an upward adjustment to take into account the other drug, namely 10.4 grammes of heroin hydrochloride, I consider that the appropriate overall starting point for sentence in the present case should be 7 years and 6 months’ imprisonment.

I have tested this overall starting point using the three tests set out by the Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013 (Reasons for Judgment dated 8 April 2014) for checking if a sentence is manifestly excessive, namely the “absurdity test” (paragraphs 12 to 13); the “conversion test” (paragraphs 14 to 17); and the “ratio test” (paragraphs 18 to 19).

In the present case, regarding the “absurdity test”, if the whole quantity of drugs seized (23.5 grammes) contained only the most serious drug, ie, ‘Ice’, the sentence would have been around 7 years and 10 months’ imprisonment.

Applying the “conversion test”, one would arrive at a sentence of around 7 years and 6 months’ imprisonment.

Finally, applying the “ratio test”, one would arrive at the total of around 7 years’ imprisonment.

In the circumstances, I consider that an overall starting point of 7 years and 6 months’ imprisonment after trial is appropriate in the present case. In coming to this view, I take into account that trafficking in two or more types of drugs should be considered an aggravating feature [see: HKSAR v Chan Yuk Leong (supra) at paragraphs 23 to 25].

I shall give the defendant the full one-third discount for her guilty plea.

The defendant is accordingly sentenced to 5 years’ imprisonment.