HKSAR v. Wan Chiu Ying

DCCC 1005/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1005 OF 2016

____________

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are small quantities of heroin, ICE and midazolam.

Summary of Facts

2.About 6:20 p.m. on 12 July 2016, police officers entered Flat A, 1^st Floor, Wing Fook Building, Reclamation Street, Kowloon ("the Flat") pursuant to a search warrant.  The Flat was about 600 ft² in size and has 9 tables (Tables 1 to 9).

3.Upon entry, the defendant was found sitting at the table near the main door ("Table 1").  She admitted to be the person-in-charge of the Flat.  Other than the defendant, there were 41 persons in the Flat.

4.The following items were found on Table 1: (i) 1 piece of paper which contained 0.67 gramme of a mixture containing 0.55 gramme of heroin hydrochloride; (ii) 1 packet which contained 0.34 gramme of a crystalline solid containing 0.33 gramme of methamphetamine hydrochloride; (iii) 1 packet which contained 0.26 gramme of a mixture containing 0.21 gramme of heroin hydrochloride; (iv) 1 packet which contained 0.09 gramme of a mixture containing heroin hydrochloride; and (v) 14 tablets and 1 tablet fragment which contained a total of 0.18 gramme of midazolam.

5.Other items including 2 boxes of (a total of 95) syringes; 1 roll of aluminum foil; an electronic scale; transaction records; and some stationery items were also found on Table 1.

6.Drug-inhaling paraphernalia such as lighters, pieces of burnt aluminum foil were found on Tables 2, 3, 5, 6, 7 and 8.

7.Under caution, the defendant admitted that she sold drugs for a living and asked for a chance.

8.In her video-recorded interview, the defendant admitted that she was responsible for selling drugs at the Flat.  It was her 1^st day working there and she started around noon.  About 5:00 p.m. on that day, she handed over to her boss sale proceeds in the sum of $14,000.  She is not acquainted with the other people present at the Flat.

Mitigation & Sentence

9.The defendant is 56 and divorced.  She has 33 conviction records, which included 4 "Trafficking" offences and over 15 drug-related offences (mainly "simple possession").  Defence solicitor Mr. CHAN informed me that the defendant received no education and is basically illiterate.  She came to Hong Kong from the mainland in 1980.

10.In mitigation, Mr. CHAN submitted that the defendant is a heroin addict and suffers from diabetes.  She was released from prison in June 2016, but was unable to find a job.  She therefore took up the job of selling drugs at the Flat.  Mr. CHAN stressed that the defendant was cooperative with the Police all along.  Instead of claiming that the drugs were for self-consumption, she confessed her role immediately.

11.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs.  Being a released prisoner, the defendant must have known how to seek help.  She re-offended in less than 2 months after being released from prison.  If her drug habit was the cause of committing the present offence, the defendant has no one but herself to blame.

12.For the purpose of sentencing, I am prepared to disregard the negligible quantity of midazolam.  I will sentence the defendant based on the quantities of heroin and ICE.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes of heroin, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

13.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003, HKSAR v CHENG Yat-ming CACC 455/2006 and HKSAR v CHAN Yuk-leong CACC 318/2013.

14.In the present case, the defendant trafficked in a cocktail of drugs consisting of 0.76 gramme of heroin and 0.33 gramme of ICE.  For 0.76 gramme of heroin, the appropriate starting point is 2 years.  For 0.33 gramme of ICE, a slightly lower starting point of 2.5 years is appropriate (due to the very small quantity).  I am of the view that the "combined approach" would arrive at a realistic and fair sentence. 

15.In terms of potency, 0.33 gramme of ICE should form the basis of the starting point.  Hence, I adopt a starting point of 2.5 years' imprisonment and adjust it upward by 6 months for the quantity of heroin, arriving at 3 years.  The defendant's last similar conviction took place in 2008.  Although this is now her 5^th conviction of "drug trafficking", in view of the quantities of drugs involved in the present case, I would not increase the starting point.  With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 2 years' imprisonment.

16.Finally, I wish to say that the court can only do so much in deterring a persistent offender by way of a heavy penalty.  Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion.  I accept that there are limits in our penal system.  If the defendant refuses to reform and to live a law-abiding life, that is her choice, and she will have to face the consequences.