HKSAR v. Chan Sau Chu

HCCC 381/2017

[2018] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 381 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

You can remain seated for the moment, Ms Chan.

On 16 October 2016, a magistrate committed Chan Sau-chu to the High Court for sentence on a charge of unlawfully trafficking in 3.38 grammes of a solid containing 3.13 grammes of cocaine and 48.3 grammes of a crystalline solid containing 42.8 grammes of methamphetamine hydrochloride.

The offence occurred on 7 April 2017, at a public place near Tsui Wan Estate in Chai Wan. She was intercepted by the police, her handbag was examined by the police. Inside her handbag was found 16 plastic bags containing the cocaine and seven bags containing the methamphetamine hydrochloride. She was found in possession of $6,200-odd and three mobile phones.

On arrest, in connection with the drugs to which I have just made reference, she was cautioned and said “Ah Sir, out of momentary greed, I helped a female take the dangerous drug “Ice” and cocaine from Mong Kok to Tsui Wan Estate for passing them to someone else. Please let me go.”

A little later, Ms Chan underwent a video-recorded interview, she was cautioned and admitted that on the date in question, she was called by a woman who asked her to deliver some stuff to Tsui Wan Estate. She said she would receive $500 for her efforts. She met up with a female and received the drugs in Mong Kok, and was intercepted in the manner that I’ve already described. She admitted that she knew that she was carrying both “Ice” and cocaine. She admitted the three mobile phones seized from her by the police were to be used in connection with drug trafficking.

On any view, she made full admission and cooperated with the police from the outset, and that is a relevant fact for sentence.

The drugs in question are valued on a retail basis as follows, cocaine, $2,714; methamphetamine hydrochloride, $12,527.

Ms Chan is 35. She is married, but separated from her husband. The marriage appears to have started promisingly enough, but the husband has completely disappeared from the scene. She came to Hong Kong from the mainland in 1997. She was 16 years old at that time. She completed her education in Hong Kong, and reached Form 5 level. There were difficulties with her education given the standard of the education she had previously received in the mainland was a significant setback by reference to Hong Kong standards.

She has worked in a variety of jobs in her adult life, and was employed in a restaurant between 2016 and February 2017. In relation to her health, she suffered pulmonary tuberculosis in 2010. In 2016, she was found to have anaemia. She is not a drug-user.

Perhaps the most significant aspect of her personal background is that she gave birth to a child, a boy, on 1 August 2017. At the time of giving birth to this child, she was in prison on remand. This means, of course, that she must have been pregnant at the time she was arrested by the police.

The child is now in the care of her parents. She sees that child on a monthly basis when the parents visit her in prison.

She has a criminal record, but the conviction was in 2008, and was a minor unrelated event, I do not propose to take it into account.

Both cocaine and “Ice” are dangerous drugs by reason of Section 2 of the Dangerous Drugs Ordinance, and Schedule 1 of that ordinance. The maximum penalty provided by law is life imprisonment and a fine of $5 million.

The community of Hong Kong and, as a result, the courts of Hong Kong, have, for many years, taken a severe view of drug trafficking, and that includes in relation to the trafficking of “Ice” and cocaine. In relation to “Ice”, the drug has terrible consequences for the individual. It is savagely addictive. Ridding oneself of that addiction is, to say the very least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to “Ice” is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to this drug. Further, the conduct of persons affected by “Ice” both in private and perhaps more pertinently, in public, can be quite dangerous.

The view of the community and the courts is reflected in the nature of the sentences, and the level of those sentences traditionally imposed for drug trafficking in “Ice”. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of the charge in this case.

In relation to “Ice”, the guidelines were restated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The consequence of this decision for this case is that if the case had gone to trial, an amount between 10 grammes and 70 grammes would attract a term of imprisonment between 7 to 11 years’ imprisonment.

Cocaine is rightly regarded as a drug essentially at the same level of danger to individuals in the community as heroin and methamphetamine hydrochloride. It is addictive and well-recognised that the effect of its use over time can have serious consequences for an individual. Those consequences do not just affect the individual, they place a drain on the community’s resources in areas such as hospital treatment and, where necessary, rehabilitation.

The source of guidelines in relation to the trafficking of cocaine starts with the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370, in Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685. The Court of Appeal declare that the guidelines in R v Lau Tak Ming & Others [1990] 2 HKLR 370 are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The consequence of this for this case is that if the trafficking in cocaine was viewed in isolation, the appropriate sentence after trial would have been between 2 and 5 years’ imprisonment.

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there is a collection of two different dangerous drugs in the possession of the defendant.

The authorities identify different approaches, and in my judgment, the differences enunciated in those approaches and in those authorities are more apparent than real. The approaches identified in the authorities recognise that an approach where sentence for each component of the drugs, which if they were simply added together, might produce a result which is unjust. This is, in the final result, a reflection of the basic principle that sentence is an art, and not a mathematical exercise, and the art of sentencing is devoted to producing a just result, given the circumstances of the defendant.

A just result in this context is against the background of the imperative which arises from the community, and thus the courts, taking a strong view in relation to the trafficking of dangerous drugs. The essence of this appropriate approach is that if the drugs were approximately similar in nature, then the approach known as the combined approach would be appropriate, see HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, at paragraph 3. The Court of Appeal in that case, Cheung JA and Tong J said that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.

In the present case, the drugs in question are cocaine and “Ice”, and can be fairly regarded as approximately equal in seriousness both in terms of the impact on the individual, the consequences for the community in dealing with the persons who ingest those drugs, particularly on a long-term basis, and the sentencing approach adopted by the courts. Indeed, the approach to sentencing adopted by the courts in relation to these two specific drugs has its roots in the decision of Lau Tak Ming & Another [1990] 2 HKLR 370, it could be argued that now “Ice” is regarded as a more serious threat to the community of Hong Kong, and the sentencing practice of the courts reflects this.

The sentencing band appropriate for cocaine for the combined weight of drugs would be between 50 grammes and 200 grammes, and a sentence range of between 8 and 12 years.

If we were dealing with this on the basis of “Ice” alone, the sentencing band, as I have already mentioned, is that for an amount between 10 grammes and 70 grammes, that would attract a term of imprisonment of something between 7 to 11 years’ imprisonment. It will readily be seen that even if one eschews a strictly mathematical approach, the sentence on the cocaine tariff would be lower for the amount of drugs than the sentence on the “Ice” tariff. It is highly pertinent to point out that the majority of the dangerous drugs in question were “Ice”. Indeed, the cocaine in question was less than 10 per cent of the overall total.

It seems to me that the just approach to this case is to add together and adjust the application of the appropriate tariff for “Ice” downwards by a small amount to reflect the slightly less serious approach that is taken for trafficking in the minority drug. As will shortly appear, the actual result is more of a reflection of judgment than mathematics.

Ms Chan pleaded guilty before a magistrate at the earliest practicable time, and thus is entitled to a full one-third discount on her sentence. She has taken responsibility for her conduct, and express remorse for it. However, it must be noted that any sentence that I pass upon her will, in a sense, be proportionately heavier because of the fact that she will be, for that time, separated from her child. The tragedy implicit in that needs no articulation by me. I cannot fail to recognise the hardship that this must inevitably impose upon the defendant.

Against that, this is, in plain terms, a case of trafficking in dangerous drugs for reward. The quantity trafficked to ruin one or more lives in this case has been stopped by the actions of the police, and that it is trafficking for reward is something I simply cannot ignore. In my judgment, the appropriate starting point is 8 years and 9 months.

Chan Sau-chu, please stand up. In an attempt to combine justice with mercy, I think the appropriate sentence in this case is 5 years and 10 months, and that is my order.