HKSAR v. Chan Man Nga Daisy

DCCC 860/2017

[2018] HKDC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 860 OF 2017

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REASONS FOR SENTENCE

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1.The defendant Chan Man Nga Daisy stands convicted of 3 charges on her own plea, namely (1) Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; (2) Possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134; and (3) Failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

Admitted Facts

2.The facts admitted by Ms Chan may be summarized as follows.

3.In the early morning of one day, Ms Chan got off a taxi and stood near the S Hotel in Tak Hing Street. She was using her mobile phone while looking around.

4.A few minutes passed when a male person M got off another taxi and met up with Ms Chan.  Together they went inside the S Hotel and entered Room 515.

5.About half an hour later, police opened the door to the room but were prevented entry by the door chain.  M rushed in the direction of the toilet while someone inside the room shouted “Police are here!”.  Police then forced-entered the room.

6.Police intercepted M near the toilet.  Ms Chan and another woman, together with two other men were seated on a bed, surrounding some dangerous drugs and equipment placed there.

7.The following items were found on the bed:-

(a) One wooden box and cover inside which were 128 grammes of a solid containing 1.78 grammes of methamphetamine ie ICE; one plastic bag containing 30 tablets of Part I poison; one electronic scale; two re-sealable bags containing a number of small re-sealable bags; two lighters; 4 glass tubes; and 6 plastic straws;

(b) One plastic bottle with a glass tube and straw containing 79 ml of a liquid containing traces of methamphetamine;

(c) One plastic bottle containing 69 ml of a liquid;

(d) One key to Room 515; and

(e) One gas cylinder.

8.The police arrested Ms Chan.

9.Back at the station, Ms Chan said under caution:-

(a) The ICE solid belonged to her which she brought to the hotel room;

(b) She took out the ICE to taste it but the place of delivery was not the hotel room;

(c) Earlier on the day of arrest, she purchased the ICE for $9,000 in Sham Shui Po;

(d) At around 0130 hours on the day of arrest, one “Ah Fai” instructed her to go to Sham Shui Po to pay $9,000 to and take something from a person there, and then to meet M at Tak Hing Street, and thereafter to call “Ah Fai” to obtain further instructions of where to go next;

(e) On her arrival at Tak Hing Street, she called M who then led her to the hotel room;

(f) The wooden box did not belong to her;

(g) She used the two plastic bottles to taste the ICE;

(h) The Part I poison did not belong to her nor did she know what it was;

(i) The glass tubes were already there when she entered the room;

(j) She used the plastic straws to transfer and inhale the ICE but they were not brought there by her;

(k) She did not know why “Ah Fai” instructed her to meet M;

(l) She put the ICE into the ICE bottle(s) and then burned the ICE; when she had difficulty burning the ICE, M helped her;

(m) Her reward for delivering the ICE would be $500.

10.The estimated street value of the ICE solid was around $39,936.

11.Ms Chan now admits that she possessed the ICE solid for the purpose of trafficking.

12.On 21 July 2017, Ms Chan appeared in Kowloon City Magistracy for this case.  The matter was adjourned to 18 August 2017 pending legal advice.  Bail was granted to Ms Chan until 18 August 2017 but she failed to surrender to custody on that day. Arrest warrant was issued against her.

13.On 8 September 2017, Ms Chan was re-arrested.  Under caution, she said she had lost her court paper so she forgot to attend court on the appointed day.

Criminal Record

14.The criminal record which is agreed shows that Ms Chan has one previous conviction in April 2017 for which she was sentenced for theft to 4 months’ imprisonment suspended for 18 months.

Personal Particulars

15.The antecedents statement which is agreed shows that Ms Chan is 35 (34 at the time of the offences), educated to F5 level and was a part-time beer sales person.  Ms Chan claimed to be a drug addict.  She is married but was living with her mother before arrest in a public housing estate.

Mitigation

16.Ms Pauline Lam of solicitor assigned by the Director of Legal Aid mitigated on Ms Chan’s behalf.

17.Ms Lam submitted that before arrest, Ms Chan was earning $9,000 to $15,000 per month; that Ms Chan was a drug addict and though married, her husband moved out about 2 years ago but they are not divorced yet.  Before arrest, Ms Chan was living with her retired mother (60).  Ms Chan has a twin sister who has married and moved out and is expecting a baby this March.  Ms Chan also has an elder brother (38) who lives away with his own family.

18.Ms Lam submitted that Ms Chan had been co-operative with the police and admitted her wrongdoing unreservedly.

19.Ms Lam urged the Court to impose concurrent sentences for the first two charges.

20.As regards the third charge, Ms Lam said her client lost her court papers and although she called the registry but got nowhere after that.

21.Ms Lam said Ms Chan hopes to get a full-time job after release and not to commit another drug-related offence.

22.Regarding the theft subject of the suspended sentence, Ms Lam submitted that it was due to a family theft from Ms Chan’s mother of RMB1,000.

Sentence

23.I have considered the mitigation submissions made by Ms Lam.

24.Trafficking in a dangerous drug is a serious offence.  Even a first offender of young age can expect to receive a heavy custodial sentence.

25.The strongest mitigation in this case is the early plea of guilty for which Ms Chan will be given full credit.

26.There are no other mitigating factors of sufficient weight to warrant further discounts.

27.There are guidelines for trafficking in ICE.  They are contained in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The tariff sentence for trafficking in up to 10 grammes of ICE is 3 to 7 years’ imprisonment. Ms Chan’s possession for trafficking of 1.78 grammes of ICE (albeit contained in a solid weighing 128 grammes) is at the lower end of the band.  I shall adopt a starting point of 3 years for this offence.

28.The usual sentence for possession of apparatus fit and intended for the inhalation of a dangerous drug is 3 months after plea (see R v Law Sing [1996] 4 HKC 477).  I shall adopt this sentence.

29.No tariff appears to exist for the offence of Failing to surrender to custody without reasonable excuse, though in previous instances, a 6 months’ sentence upon plea was not disturbed on appeal (see HKSAR v Lam Kin Chung [2007] 2 HKC 451 and HKSAR v Yeung Kin Chai [2009] 3 HKC 35).  I note that the period when Ms Chan was at large was not long being less than a month.  I shall therefore adopt a starting point of 6 months and shall reduce it to 4 months upon plea.

30.Although the offences subject of the first two charges occurred at the same place and time, they are separate offences which are not concomitants of each another.  A degree of consecutiveness must go into the sentences.

31.Commission of the third offence – that of failing to surrender – is completely separate and unrelated to that of the first two offences and therefore, subject only to the principle of totality, must be dealt with consecutively in terms of sentences.

32.Regarding the suspended sentence, I note that it was imposed only about 2 months before the present offences.  That is a serious feature.  I will activate it to the full extent. However, as an act of leniency, and taking into account the totality principle, I will make it partially concurrent to the other sentences.

33.Ms Chan please stand.

34.In arriving at the final sentence, I have considered totality.

35.For Charge 1, I adopt a starting point of 3 years’ imprisonment.  For her early indication of plea which was materialized, I shall deduct 1/3 from the starting point to arrive at a sentence of 2 years’ imprisonment.

36.For Charge 2, I adopt a starting point of 4½ months’ imprisonment and impose a sentence of 3 months’ imprisonment for her plea.  One month of this sentence is to run consecutively to that on Charge 1.

37.For Charge 3, I adopt a starting point of 6 months’ imprisonment and, for her plea, I impose a sentence of 4 months’ imprisonment.  I order that 3 months of this sentence is to run consecutively to the other two sentences.

38.Consequently, the total sentence for this case is 2 years and 4 months’ imprisonment.

39.For the suspended sentence of 4 months’ imprisonment that was ordered in KC/1154/17, I activate it to the full extent.  However, as an act of leniency and having regard to totality, I order that 2 months of the 4 months’ imprisonment is to run consecutively to the total sentence for the present case.

40.As a result, Ms Chan will go to prison for 2 years 6 months.