HKSAR v. Wong Yuk Chun

DCCC 784/2018

[2019] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 784 OF 2018

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to trafficking in dangerous drugs (1^st Charge) and possession of equipment fit and intended for the inhalation of a dangerous drug (2^nd Charge). 

Facts

2.On 30 May 2018, police officers in the Upper Ngau Tau Kok Estate area.  At about 2:10 p.m., when the Defendant left her home at a unit on 32^nd floor of a building block in Upper Ngau Tau Kok Estate, Kowloon, in Hong Kong (“Premises”), she was intercepted by the police in the course of anti-narcotic patrol.

3.On the strength of a search warrant, the police officers entered the Premises and conducted a search.

4.They found the following items in a set of plastic drawers:-

(a) a blue purse which contained:-

(i) 7 transparent resealable plastic bags containing crystalline solid suspected to be dangerous drugs (“Exhibit 1”);

(ii) 3 transparent resealable plastic bags containing mixture suspected to be dangerous drugs (“Exhibit 2”);

(iii) 1 transparent resealable plastic bag tied with a rubber band containing mixture suspected to be dangerous drugs (“Exhibit 3”);

(b) an electronic scale; and

(c) a transparent resealable plastic bag containing 15 empty transparent resealable plastic bags.

5.The government chemist confirmed that:-

(a) Exhibit 1 was 7 plastic bags containing a total of 5.42 grammes of a crystalline solid containing 5.41 grammes of methamphetamine hydrochloride or “Ice”;

(b) Exhibit 2 was 3 plastic bags containing a total of 1.51 grammes of a mixture containing 1.14 grammes of heroin hydrochloride, and Exhibit 3 was 1 plastic bag tied with a rubber band containing 1.91 grammes of a mixture containing 1.47 grammes of heroin hydrochloride. The total was 3.42 grammes of a mixture containing 2.61 grammes of heroin hydrochloride.

6.The estimated street value of Exhibit 1 was around HK$2,981, and that of Exhibits 2-3 was around HK$3,132.7.

7.Cash of HK$1,560 and a mobile phone were found on the Defendant. 

8.Such facts relate to the 1^st Charge.   

9.The police also found an inhaling device (“Device”) on a table in the Premises.  Such facts relate to the 2^nd Charge. 

10.The Device contained a liquid. The Defendant was arrested and cautioned for “Trafficking in Dangerous Drugs” and “Possession of Equipment Fit and Intended for Inhalation of Dangerous Drugs”. 

11.Under caution, she admitted that:-

(a) she promised “Amy” to deliver the dangerous drugs to a 7-11 store at Lower Ngau Tau Kok Estate for a reward of HK$500; and

(b) she used the Device to consume “Ice”.

12.In the subsequent cautioned video-recorded interview, the Defendant admitted, inter alia, that:-

(a) at about 6:00 p.m. on 29 May 2018, she met a female called “Amy” near Ngau Tau Kok market. “Amy” asked her whether she wanted to earn some quick money, and she said yes. Thereafter, “Amy” took out a blue purse, an electronic scale and some transparent resealable plastic bags and gave them to her;

(b) she opened the blue purse and saw 7 packets of “Ice” and 4 packets of heroin;

(c) “Amy” asked her to sell them to a male called “Kit Chai” at 3:00 p.m. on 30 May 2018;

(d) she then returned home and put the dangerous drugs, the electronic scale and the transparent plastic bags in the plastic drawer;

(e) at the time that she was intercepted by the police, she was going to deliver Exhibits 1-3 to “Kit Chai” at the 7-11 store at Lower Ngau Tau Kok Estate;

(f) she did not know “Kit Chai”;

(g) she was told that someone would call her when she arrived;

(h) she would receive a reward of HK$500 if the delivery was successful;

(i) she lived alone at the Premises;

(j) she met “Amy” in jail. She did not have the contact method of “Amy”;

(k) HK$1,600 was money for her own living expenses;

(l) she used to receive CSSA of HK$4,800 per month;

(m) she used to work as a waitress but then became unemployed;

(n) she had habit of consuming “Ice” for 10 years;

(o) she used to take “Ice” 5 times a week, but she did not know the amount of consumption each time;

(p) she made the Device herself a long time ago; and

(q) she used the Device to consume “Ice”.

13.At all material times:-

(a) the Defendant possessed Exhibits 1-3 for the purpose of unlawful trafficking (1st Charge); and

(b) the Defendant had in her possession the Device which was fit and intended for the inhalation of a dangerous drug, namely “Ice” (2nd Charge).

Mitigation

14.The Defendant is aged 59.  She was unemployed and relied on CSSA.  She resided alone at the Premises before arrest.  Her husband had passed away more than 20 years ago. She had many criminal records, including one for trafficking (sentenced to 3 years in 2002), one for possession of equipment fit and intended for the inhalation of a dangerous drug (sentenced to DATC in 1990), and four for possession of dangerous drugs (dates of sentence from 1990 to 1997).

15.Her solicitor Mr. Chan in mitigation informs me that the Defendant was in declining health, especially affected by asthma.  She has been an “Ice” addict for 5 years.  It is her claim that among the dangerous drugs found on her she had intended to retain some of the Ice for self-use.  He asked me to reduce the sentence accordingly.   I expressly regard such claim inconsistent with the particulars of the offence under the 1^st Charge and the summary of facts, each admitted by her and each referring to the entire quantity seized as the basis of the charge of trafficking.  Absent an application for reversal of plea so that such self-use quantity can be reflected in the particulars of the offence and the summary of facts, I cannot consider such claim of self-use. After discussing with the court, Mr. Chan informs me that the Defendant will not pursue such claim. 

Sentencing considerations

16.For trafficking in below 10 grammes of “Ice”, the sentencing guidelines suggest 3 – 7 years (HKSAR v Tam Yi-chun [2014] 3 HKLRD 691).  For trafficking in below 10 grammes of heroin, 2 – 5 years is suggested (R v Lau Tak-ming [1990] 2 HKLR 370). 

17.In HKSAR v. Yip Wai Yin [2004] 3 HKC 367 the “Individual Approach” and the “Combined Approach” were each analysed in sentencing traffickers of cocktail dangerous drugs.  The latter approach is to be adopted where one of the dangerous drugs involved was more harmful and plentiful than the others.  The sentencing judge shall fix a starting point for such drug and then adjust it upwards to take into account the impact of the other drugs.   

Sentencing this Defendant

18.For the 1st Charge, I consider 4 years 9 months (or 57 months) as the starting point for the “Ice”, to be adjusted upwards by 6 months for the impact of the heroin.  The actual starting point is therefore 5 years 3 months (or 63 months).  After a one-third discount for her plea of guilty, the sentence is 3 years 6 months (or 42 months).

19.For the 2^nd Charge, I take 3 months as the starting point.  After a one-third discount for her plea of guilty, the sentence is 2 months. 

20.After totality consideration, I order the sentences to be concurrent.