HKSAR v. Tsim Ching Ching

DCCC 421/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 421 OF 2017

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Trafficking in a dangerous drug" (Charge 1); 1 charge of "Possession of Part I Poison" (Charge 2); and 1 charge of "Possession of apparatuses fit and intended for the inhalation of a dangerous drug" (Charge 3). The dangerous drug involved in Charges 1 and 3 is "ICE".

Summary of Facts

2.About 4:10 p.m. on 5 January 2017, the defendant was stopped by police officers when he came out of his residence situated at a public housing unit at Pik Yuen House, Shek Pai Wan Estate, Aberdeen.

3.The defendant's home was searched.  The following items were found on a coffee table placed in the sitting room :-

(a) a white paper box containing :-

(i) 1 resealable plastic bag which contained 40 tablets of zopiclone;

(ii) 3 ressealable plastic bags which contained a total of 7.65 grammes of a crystalline solid containing 1.87 grammes of methamphetamine hydrochloride;

(iii) 1 resealable plastic bag which contained 3 plastic bags and 0.60 gramme of methamphetamine;

(iv) 175 resealable plastic bags;

(b) a yellow plastic box containing an inhaling device which consisted of 1 glass bottle with 2 outlets, one of which was inserted with a plastic straw, and 6 glass tubes each with a bulb end (the glass bottle was found to contain traces of a powder containing methamphetamine);

(c) 2 glass tubes and 1 plastic tube;

(d) 2 plastic straws, 1 spoon, 1 electronic scale, 1 calculator and 2 lighters.

4.In his video recorded interview, the defendant admitted that when his customer friends came to his flat to take "ICE", they would give him $200 as tea money.  He also admitted that both the "ICE" and zopiclone tablets found in the flat belonged to him.  He and his friends would use the bottles, tubes and straws found in the flat to inhale "ICE".

5.At the time of arrest, the defendant did not have any prescription to purchase or possess the zopiclone tablets.

6.Based on his admission, 1 inhaling device, 2 glass tubes and 1 plastic tube possessed by the defendant were fit and intended for the inhalation of a dangerous drug, namely methamphetamine.

Mitigation & Sentence

7.The defendant is 40 and single.  He has 17 conviction records, which included 2 "trafficking" offences and 4 "simple possession" offences.  Defence solicitor Mr. HO informed me that prior to the present offences, the defendant was a cleaner earning a daily wage of $400.  He resides with his girlfriend at the flat where drugs were found.

8.In mitigation, Mr. HO submitted that the defendant is a stimulant dependant and suffers from paranoid schizophrenia.  Prior to his arrest, he attended the Western Psychiatric Centre for follow-up treatment.  He has been remanded in Siu Lam Psychiatric Centre since January.  Letters written by the defendant, his girlfriend and younger sister were placed before me; their contents are duly noted.

9.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a dead serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.  It seems that the defendant in the present case did not just sell "ICE" to his friends but had also kept his home as a divan.

10.For Charge 1, the Court of Appeal has laid down clear sentencing guidelines for trafficking in "ICE" (see HKSAR v TAM Yi Chun [2014] 3 HKLRD 691).  For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment. In the present case, the defendant trafficked in 2.47 grammes.  I would not treat allowing his customer friends to smoke "ICE" at his home as an aggravating factor.  I simply adopt 4 years as the starting point.  With the guilty plea, the sentence is reduced to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 32 months' imprisonment.

11.For Charge 2, it involves 40 tablets of zopiclone.  I adopt a starting point of 3 months' imprisonment.  With the guilty plea, the sentence is reduced to 2 months.  I sentence the defendant to 2 months' imprisonment.

12.For Charge 3, the usual starting point is 3 months' imprisonment after plea[1].  I have no reason not to follow it.  Hence, I adopt 4.5 months as the starting point.  With the guilty plea, the sentence is reduced to 3 months.  I sentence the defendant to 3 months' imprisonment.

13.Having considered the totality principle, I order the sentences for all 3 charges to run concurrently.  Thus, arriving at a total prison term of 32 months.