HKSAR v. Chang Ka Wai

DCCC 707/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 707 OF 2017

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "simple possession" (Charge 1); 1 charge of "trafficking" (Charge 2); and 1 charge of "Possession of an apparatus fit and intended for the inhalation of a dangerous drug" (Charge 3).

Summary of Facts

Charge 1

2.On 17 December 2016, the defendant was stopped by police officers outside her residence situated at a public housing unit at Wing Shui House, Lek Yuen Estate, Shatin ("the Flat").  Upon search, 0.07 gramme of a crystalline solid containing methamphetamine hydrochloride was found in the defendant's jumper.  Under caution, she admitted self-consumption.

Charges 2 and 3

3.The Flat was searched. The following items were found on the computer desk placed in the living room :-

(a) a cartoon character resealable bag containing :-

(i) 2 resealable plastic bags which contained a total of 4.60 grammes of a crystalline solid containing 4.48 grammes of methamphetamine hydrochloride;

(ii) 1 plastic bag and 2 paper packets which contained a total of 1.16 grammes of a mixture containing 0.96 gramme of heroin hydrochloride; and

(iii) 1 paper packet which contained traces of a powder containing midazolam;

(b) a blue plastic bottle with a glasstube and a straw;

(c) an iron box containing a glasstube and a resealable transparent plastic bag which contained 4 resealable transparent plastic bags;

(d) 7 plastic straws; and

(e) a resealable transparent plastic bag containing 24 resealable transparent plastic bags.

4.Under caution, the defendant admitted that the ICE and heroin belonged to her.  She would sell them to friends who come to purchase.  The defendant claimed that the drug found on her was for self-consumption.  The drugs found in the Flat belonged to her and she would sell them to friends when they come to purchase.  She used the blue plastic bottle and the straws to consume ICE; and such items were used by her only.  The resealable transparent plastic bags were for containing drugs.

Mitigation & Sentence

5.The defendant is 48 and divorced. She has 22 conviction records, which included 20 drug-related offences (16 of which were "simple possession" and 1 was "trafficking").  Defence solicitor Mr. TANG informed me that the defendant suffers from carpal tunnel syndrome and is assessed to be a "person with disabilities".  She receives social welfare in the sum of $4,600 per month.

6.In mitigation, Mr. TANG submitted that the defendant was stopped by the Police on her way home[1] (rather than leaving the Flat).  Unlike typical drug traffickers who sell drugs to anyone, the defendant only sells to friends who come to visit her.  If no friends show up, she would consume a small portion of the drugs found in the Flat.  Mr. TANG further submitted that defendant is a long-term drug addict, which can be seen from her criminal record and urine test results[2]. She took heroin for pain relief.

Charge 1

7.Based on the quantity of the ICE and the defendant's long history of "simple possession" convictions, I adopt a starting point of 9 months' imprisonment.  With the guilty plea, the sentence is reduced to 6 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 6 months' imprisonment.

Charge 2

8.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 ICE (see HKSAR v TAM Yi Chun [2014] 3 HKLRD 691) and heroin (see The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.  For up to 10 grammes of heroin, the sentence ranges from 2 to 5 years' imprisonment. 

9.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[3]. In the present case, the defendant trafficked in a cocktail of drugs consisting of 4.48 grammes of ICE and 0.96 gramme of heroin.  For 4.48 grammes of ICE, the appropriate starting point is 57 months.  For 0.96 gramme of heroin, the appropriate starting point is 2 years.  In my view, the "combined approach" would arrive at a realistic and fair sentence.

10.In terms of potency, 4.48 grammes of ICE should form the basis of the starting point. Hence, I adopt a starting point of 57 months' imprisonment and adjust it upward by 6 months for the quantity of heroin, arriving at 63 months.

11.I have also reminded myself of the relevant sentencing principles on the discount for self-consumption[4]. The defendant is no doubt a long-term drug abuser.  Mr. TANG has fairly accepted that the defendant's self-consumption of the drugs found in the Flat is contingent upon the fact that no friends show up to buy.  Furthermore, Mr. TANG has confirmed that only a small portion of the drugs would to be consumed by the defendant even if no friends show up.  Plainly, there is no evidence to suggest that a significant proportion of the drugs was for the defendant's own consumption[5].  Hence, I would not grant her any discount in this regard.

12.With the guilty plea, the sentence is reduced to 42 months.  I sentence the defendant to 42 months' imprisonment.

Charge 3

13.The usual starting point for this offence is 3 months' imprisonment after plea[6]. 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.

14.Having considered the totality principle, I order the sentences for all 3 charges to run concurrently.  Thus, arriving at a total prison term of 42 months.

15.The defendant has spent most of her time in and out prison and Drug Addiction Treatment Centre since 1993.  The court can only do so much in deterring a repeated offender by way of a heavy penalty.  Whilst the sentence must carry a deterrent effect, it cannot go out of proportion.  To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for her.