HKSAR v. Huen Yuen Shing and Another

DCCC 927, 928 & 1120/2015
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 927, 928 & 1120 OF 2015 (CONS)

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Reasons for Sentence

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1.The 1st defendant pleaded guilty to Charge 4, a charge where he is jointly charged with the 2nd defendant, trafficking in a dangerous drug, namely 4 grammes of a crystalline solid containing 3.95 grammes of methamphetamine hydrochloride, “Ice”.

2.The 2nd defendant has pleaded guilty to three charges: 

(1) Charge 2, trafficking in a dangerous drug, namely 3.35 grammes of crystalline solid containing 3.32 grammes of “Ice”;

(2) Charge 3, possession of apparatus fit and intended for the inhalation of “Ice”; and then

(3) Charge 4, where she is jointly charged with the 1st defendant for trafficking in, as I have just said, purity of 3.95 grammes of “Ice”.

3.The facts are as follows.

4.These charges involve two separate incidents and dates.

5.The first incident and date is 15 August 2015. In short, on that day, the police had a search warrant for the 3rd defendant’s home.  The 3rd defendant has been dealt with earlier, having pleaded guilty to Charge 1.

6.During a house search, the police found the dangerous drugs, the “Ice” of Charge 2, as well as the apparatus of Charge 3, amongst other drug-related paraphernalia.

7.The 3rd defendant told the police that the “Ice” did not belong to him, but, in fact, belonged to the 2nd defendant.  The arrangement was she kept the “Ice” at his home and, in return, she would share it with him.  The apparatus found in his home also belonged to the 2nd defendant.  He would also use it to consume “Ice”.

8.The second incident took place on 2 September 2015.  It was in a different housing estate to Charges 2 and 3, but still in Chai Wan.  On this date, police officers were on patrol and on the eighth floor of Tsui Hong House, Tsui Wan Estate, officers saw the 1st defendant squatting down in the corridor and pick something up from behind a firehose.  They stopped and searched the 1st defendant.  In his hand there was a packet of tissue and in that packet of tissue the police found the “Ice” of Charge 4.

9.The 1st defendant admitted, under caution, that he had carried it for the 2nd defendant.  He told the police he knew it was “Ice”.  He also told the police how to locate the 2nd defendant.  He gave them her telephone number, description and address.  The 2nd defendant was ultimately arrested on 16 September, two weeks later.

10.The drugs of Charge 4 are estimated to be valued at about $1,290.

11.The 2nd defendant, after her arrest, made full admissions in several video recorded interviews.  She told the police that, as the 3rd defendant had said, she did keep the “Ice” of Charge 2 in his home. The apparatus of Charge 3 did belong to her.  She would share the “Ice” she kept there with the 3rd defendant.  She told the police that other exhibits found did not belong to her.  She expanded and told the police that she had bought that apparatus in order to inhale “Ice”.

12.As far as Charge 4 was concerned, she had bought that quantity of “Ice” in Sham Shui Po, but she was taking her daughter to school so did not want to carry it on her person.  She asked the 1st defendant to hide it for her.

13.On 2 September, she and the 1st defendant went together to retrieve it.  She saw the police on the eighth floor and did not get out of the lift, but left, evading arrest.  She did not tell the 1st defendant the police were there and he went forward to get the “Ice” that he had hidden earlier.  He was then arrested.

14.The 2nd defendant told the police that she asked the 1st defendant to hide it for her and would later share it with him as a reward.

15.The 1st defendant does not have a clear record. He has two previous convictions before his arrest and they are not similar to trafficking dangerous drugs.  In 2010, he served a detention centre order for unlawful sexual intercourse with a girl under 16.

16.The 2nd defendant has five previous convictions; all relate to dangerous drugs.  The first conviction was in 1995 for possession and the last conviction was in 2011, for her one and only trafficking conviction, where she was sentenced to 3 years’ imprisonment by me in the District Court.

17.The 1st and 2nd defendants’ best mitigation is their pleas of guilty.

18.The 1st defendant is only 22 years old.  He was educated up to Form 2 standard and lives at home with his parents.  He is the only son and has an elder sister.  Since he has finished school, he has worked as a waiter, but at the time of the offence had lost his job.  He admits he has been a drug addict for the last four to five years.

19.I have had two letters of mitigation:  one from the defendant himself and the other from his sister. 

20.He is remorseful, now knows the hardship of being in prison, and is very grateful that his family visit and continue to support him.  It has led him to be determined to quit dangerous drugs. 

21.His sister similarly asks for leniency.  She explains her parents are in ill health and traumatised by the defendant’s remand in custody.  Nevertheless, they continue to encourage him and support him.

22.The 2nd defendant is 40 years old and when she is employed works as a saleslady.  She is divorced with two daughters.  One of those daughters is in her custody and lives with her, her mother and her younger brother.  I have been told since the defendant has been remanded in custody, her daughter still lives with her mother.

23.Having referred to the sentence I imposed in 2011, the defendant wrote a letter then saying that she wanted to be a responsible mother.  Clearly, she has not lived up to that promise.  I feel sorry for her young daughter.  She is an innocent child who suffers because her mother does not have the willpower to quit dangerous drugs.

24.Both defence counsel have said all they can on behalf of the 1st and 2nd defendant.  Both have referred me to pertinent authorities in the circumstances of this case.  It does seem that on both occasions the trafficking was sharing amongst other addicts, as opposed to acting as a drug courier for a financial reward or selling dangerous drugs to others.

25.Mr Marray has taken me to the authority of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  In that authority, the Court of Appeal considers situations where the trafficking offence involves social trafficking and not commercial transactions.  In those situations, sometimes that can be taken into account.

26.That same authority considers the situation where part of the drug in the trafficking charge is for the defendant’s own consumption. 

27.Here I accept that the 2nd defendant bought the drugs for herself, but shared it with the 3rd defendant and would have shared it with the 1st defendant.  There is no evidence she would have sold it to them.  However, there is still a latent risk in that situation.

28.I accept that submission, but I am not going to quantify how much of the “Ice” in both charges would be for self-consumption.

29.I have taken into account the authority of HKSAR v Chow Chun Sang, CACC 135/2011.  The Court of Appeal discusses sentencing for just this scenario, where part of the drugs trafficked is for self-consumption.  Depending on factors in each individual case, such a submission would attract a discount of between 10 to 25 per cent off the basic starting point.

30.For the 1st defendant, Mr Chau has asked for a higher than usual discount for his plea, the reason being that he fully co-operated with the police, giving them details which led to the arrest of the 2nd defendant.  In addition, he gave a non-prejudicial statement, meaning he was ready to give evidence against the 2nd defendant if required. 

31.I suspect his actions may have encouraged a plea.

32.Mr Chau has referred me to two authorities:  HKSAR v Chiu Tak Man, CACC 31/2014, as well as Z v HKSAR [2007] 10 HKCFAR 183.  Those authorities encourage arrested persons to give assistance to the authorities. 

33.Here, the defendant has clearly provided assistance and would have been willing to provide further assistance, but ultimately he was not required to give evidence.  In such a situation, a 40 to 45 per cent discount should be applied over and above the one-third normal discount.

34.Where trafficking “Ice” is concerned, the court will follow the authority of the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125.  There, the Court of Appeal is of the view that if between 0 to 10 grammes of “Ice” is trafficked, then the appropriate starting point would be between 3 to 7 years.  Mathematically speaking, a 4½-year starting point is appropriate for 3.75 grammes of “Ice”.

(Clarification of sentence)

35.1st defendant, please stand up.

36.The 1st defendant helped the 2nd defendant carry, hide and collect the “Ice” of Charge 4. 

37.I accept he did not do it for a financial reward but for a share of the “Ice”.

38.I also take into account that when he was arrested he had no previous convictions for drugs, but I do not doubt that he was a drug addict.

39.I accept mitigation that he should be entitled to a 45 per cent discount, according to the authorities, for his full co-operation and non-prejudicial statement supplied.

40.Considering all those relevant factors, I intend to take for Charge 4 for the 1st defendant a starting point of 3 years and 6 months.

41.I am going to reduce that by a further 6 months to take into account the self-consumption element.

42.That will reduce the starting point to 3 years.

43.I am going to apply a discount of just under 45 per cent, which would reduce the starting point to 1 year and 8 months’ imprisonment.

COURT: Do you understand that sentence?

1ST DEFENDANT: Understand.

44.2nd defendant, please stand up.

45.You have pleaded guilty.  I have considered all mitigation put forward. 

46.The facts of the case and your previous convictions put you in a different category to the 1st defendant.  You bought the drugs for both the trafficking offences.  I accept you are a drug addict. I also accept that you were not going to traffic the drugs for money, but the trafficking comes from your intention to share with other addicts, and I also accept part of the drugs would have been for your self-consumption.

47.For Charge 2, instead of the mathematical starting point of 4 years and 6 months, I am going to take a starting point of 4 years. 

48.I will then reduce that starting point by just under 20 per cent to reflect part would have been for self-consumption.  That is a reduction of 9 months.  Therefore, the starting point becomes one of 3 years and 3 months.

49.You have pleaded guilty.  You are entitled to a discount of one-third.  That is a reduction of 13 months. 

50.Therefore, for Charge 2, you are sentenced to 2 years and 2 months’ imprisonment.

51.For Charge 3, possession of an apparatus fit and intended for the inhalation of “Ice”, I take a starting point of 9 months’ imprisonment. 

52.I reduce that by one-third for your plea.

53.For Charge 3, you are sentenced to 6 months’ imprisonment.

54.For Charge 4, this offence took place on 2 September.  Like Charge 2, instead of a starting point of 4 years and 6 months, I take a starting point of 4 years.

55.I reduce that by just under 20 per cent to reflect part would have been for self-consumption, a reduction of 9 months. Starting point becomes one of 3 years and 3 months.

56.You are entitled to a discount of one-third for your plea. 

57.After that discount is applied, Charge 4, you are sentenced to 2 years and 2 months’ imprisonment.

58.I order that Charges 2 and 3 be served concurrently.

59.Charge 4, it is a separate occasion, but I take into account the totality principle.

60.I would order that part of Charge 4 be served consecutively to Charge 2.

61.After considering the facts, I will order that 10 months of Charge 4 be served consecutively to Charge 2, the balance concurrently.

62.Therefore, total sentence for the 2nd defendant is 3 years’ imprisonment.

COURT: Do you understand that sentence?

2ND DEFENDANT: Understand.