HKSAR v. Cheung Kwan Wah, Win

DCCC 463/2018

[2018] HKDC 1472

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 463 OF 2018

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REASONS FOR SENTENCE

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1.Police investigating into a car accident on a highway led to the discovery of drugs on the defendant.

2.The defendant, a 46-year-old single woman, pleaded guilty before me to one count of drug trafficking (the drugs are 3.06 grams of a solid containing 2.56 grams of cocaine – charge 1) and one count of possession (0.91 gram of a solid containing 0.82 gram of cocaine - charge 2)

3.About 7:30 in the morning of 23 March 2018, police officers attended the scene to deal with a car accident on the Yuen Long Highway, Hung Shui Kiu, where the defendant was seen getting out from the passenger side of a car and walking away.

4.The defendant, who appeared to be disoriented, was stopped by the officers some 20 metres away and her slurred speech prompted them to ask her whether she had any drugs on her. She then reached down her trousers in the front and got a pouch out. Inside the pouch, the officers found a plastic bag containing 13 smaller plastic bags of cocaine (the subject matter of charge 1). Also found on her were a mobile phone and cash of $11,154.

5.She was taken back to the police station where a search was conducted. The officer found another plastic bag containing 5 smaller bags of cocaine in the defendant’s shirt pocket (the subject matter of charge 2).

6.The defendant has 4 prior convictions - one drug related and the rest are dishonesty offences. The last conviction is possession of drugs in May 2018 for which she was sent to prison for 5 months. The court was informed by the prosecution that the defendant is no longer serving any prison term as of today.

7.The court heard that the defendant was asthmatic, though herself a manageress of a cleansing company, her job still required her to do manual labour and as a result of which the defendant suffered from depression. She was ill advised by friends to turn to drugs to relieve her stress.

8.Insofar as the drugs for the offence of trafficking was concerned, counsel for the defendant submitted that half of it was for personal use.

9.On the evidence before the court, I made it clear to the defence that the court was not prepared to accept such assertion without further proof. Having taken further instructions, counsel informed the court that there wouldn’t be any further evidence.

10.First, the drugs she admitted to trafficking were 13 packets of cocaine which is not divisible by 2. Secondly, those drugs (5 packets) found in the defendant’s shirt pocket had been treated by the prosecution as not for trafficking – she was charged with possession. In other words, part of the drugs found on her had already accounted for self-consumption.

11.Now the defence went one step further to say that half of those drugs hidden underneath her trousers was also for her consumption, then the court would like to know how this was so.

12.What the defence was effectively saying is that the defendant brought along two types of drugs – one for her own use and one for trafficking when she was out engaging in the activities of drug dealing.

13.It is counterintuitive for a drug dealer to do that not least because they knew that that would get them into bigger trouble in the event of running into any law enforcement agents like the police.  It is very often the case that they would be charged with trafficking the whole lot, so I would expect them to at least stash away those drugs they intend for personal use before moving on to do drug business.

14.Unless the defendant came up with a plausible explanation of her behaviour, the defence assertion remained no more than a bare one and it would be hard for the court to swallow it.

15.For the offence of trafficking, I take 33 months as the starting point and for the possession 6 months, after deducting one-third for the timely pleas, the starting point is reduced to 22 months for trafficking and 4 months for possession.

16.I order both terms to run concurrently with one another, and the total term is one of 22 months’ imprisonment.