HKSAR v. Cheng Mei Ling, also known as Cheng Man Yi

DCCC 597/2019

[2019] HKDC 1564

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 597 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges. Under Charge 1 she was charged with trafficking in dangerous drugs, namely 6.74 gramme of a mixture containing 5.37 gramme of heroin hydrochloride, 0.01 gramme of a powder containing heroin, 24 tablets containing 0.31 gramme of midazolam and 0.62 gramme of a crystalline solid containing 0.5 gramme of methamphetamine hydrochloride. Under Charge 2 she was charged with possession of apparatuses fit and intended for the smoking or inhalation of dangerous drugs, namely one piece of tin foil, one glass pipe and one glass bottle inserted with a straw.

2.According to the facts admitted by her, the defendant was intercepted by the police as she was exiting a premises in Leung King Tsuen on a wheelchair on 17 April 2019.  The police conducted a search on her with her consent and found the following items inside the right pocket of her beige shorts:-

- one green resealable bag containing 10 round objects wrapped in plastic containing a total of 1.46 gramme of a mixture containing 1.17 gramme of heroin hydrochloride and one foil pack containing one blue tablet containing 0.01 gramme of midazolam;

- one black resealable bag containing 5.2 gramme of a mixture containing 4.20 gramme of heroin hydrochloride; and

- a black resealable plastic bag containing 0.54 gramme of a crystalline solid containing 0.5 gramme of methamphetamine hydrochloride.

3.She was arrested for trafficking in dangerous drugs and under caution she claimed that the ‘pork’ was for her consumption whereas some of the ‘4 jai’ was for her use and some was for selling.

4.The police then executed a search warrant at the premises and found the following items on the desk inside the living room:-

- a paper box containing a plastic bag containing 0.08 gramme of a mixture containing heroin hydrochloride;

- one resealable plastic bag containing 0.01 gramme of a powder containing heroin;

- one resealable plastic bag containing 0.08 gramme of a crystalline solid containing methamphetamine hydrochloride;

- one paper bag containing 11 foil packs containing 23 blue tablets containing 0.3 gramme of midazolam;

- one glass bottle with a black plastic straw;

- one glass smoking pipe;

- one pair of black scissors;

- one tweezer;

- a clip with a pack of plastic bags;

- a digital scale; and

- a piece of aluminium foil.

5.The defendant was then arrested for trafficking in dangerous drugs and possession of apparatus fit and intended for inhalation of dangerous drugs. Under caution she admitted that some of the drugs was for her own use and some was for selling.

6.In two subsequent video-recorded interviews conducted with the defendant under caution, she admitted that she was a CSSA recipient and lived alone on the premises.  She was a habitual user of heroin and ‘Ice’ and sold drugs to finance her addiction.  Her neighbours would “come up” to buy drugs from her. By ‘pork’ and ‘4 jai’ she meant ‘Ice’ and heroin respectively.  She would sell half of the heroin and consume the remainder, and the ‘Ice’ was for her own consumption.  When she could not sleep, she would take the blue tablets and, sometimes, when her neighbours could not sleep she would sell some to them.  The clip and plastic bags were used to pack drugs whilst she used the aluminium foil, the glass bottle with a straw and the smoking pipe to take drugs.

7.The street value of the drugs at the time of the offence was estimated to be about $5,183.

8.According to the criminal record admitted by the defendant, she has 22 priors involving 31 charges dating back to 1974, the majority of which were drug-related.  She has three previous convictions involving trafficking in dangerous drugs and her last conviction was in 2015 to 2016.

9.In mitigation, her counsel Miss Wu urged upon me that the defendant is now 67 years old, she was educated up to primary 6 level and had worked as a factory worker and a nightclub hostess before.  She ceased working after getting married in 1978 and bore a son.  The couple later divorced in 1989. Her son would pay her visits every one or two months but does not provide financial support to her and the defendant is on CSSA receiving about $4,200 per month.

10.The defendant was introduced to heroin by her ex-husband who was also an addict.  Whilst she had managed to stay away from drugs for periods of time in the past, she continued her vice habits on and off for years.

11.In 2010, the defendant received a hip replacement surgery and has been wheelchair-bound since then.  She had refrained from using drugs after her release from prison in 2015 but her hip condition had deteriorated in recent years causing her severe pain and insomnia and she resorted to drugs again in February this year.

12.Charge 1 involves a cocktail of dangerous drugs.  I have decided to adopt the combined approach.  Applying the relevant guidelines, trafficking in 5.37 gramme of heroin hydrochloride should attract a starting point of 3 years and 7 months of imprisonment.  I shall adjust it upwards to 3 years and 9 months of imprisonment to take into account the 0.5 gramme of methamphetamine hydrochloride found on the defendant.  I agree with Miss Wu to disregard the midazolam seized as it would not make any significant difference in terms of sentence.  That starting point is checked against the result of the absurdity test, the conversion test and the ratio test as detailed in Miss Wu’s submissions and found to be fair and appropriate.

13.There is an issue of whether any part of the drugs seized were for self-consumption.  In mitigation Miss Wu submitted that there was no evidence to indicate that any of the drugs (other than half of the heroin) was for trafficking purposes, and that all the ‘Ice’ seized were for the defendant’s own consumption.  Miss Wu’s submission is inconsistent with the defendant’s own admission under caution that her neighbours would come up to buy drugs from her and that she would sell some of the midazolam to those neighbours who could not sleep.  Also, the submission does not sit well with the facts admitted by the defendant that she was seen leaving the premises with a substantial amount of drugs on her and the way those drugs were packaged.

14.The presence of paraphernalia inside the premises and the fact that the defendant had subsequently been tested positive for amphetamine and opiate by the Correctional Services Department is no evidence that the drugs found on her, constituting the bulk of the drugs seized, were for her own consumption. Notwithstanding these inconsistencies, the defendant has elected not to testify on her allegation that the substantial proportion of the drugs seized was for her own consumption and I reject that mitigation.

15.Having said that, I note that the defendant is a long-time addict.  She had recently undergone a hip replacement surgery with resultant pain and insomnia, a fact that is not disputed by the prosecution.  I accept that some of the drugs seized, such as some of the minute quantity found inside the premises, may have been for self-consumption.  In the exercise of my discretion, I shall give her 2 months’ discount to reflect the fact that some of the drugs seized was for her own consumption.

16.On the other hand, the defendant is a persistent reoffender.  Whilst I have some sympathy to her circumstances, I cannot ignore the fact that she has persistently resorted to selling drugs to others to finance her addiction.  She was convicted of possession of dangerous drugs for the purpose of unlawful trafficking in 1989 and then for trafficking in dangerous drugs again in 2002 and 2015.  There is a need to enhance her sentence by 2 months to protect the community from her criminal activity.  I shall therefore adopt the starting point of 3 years, 9 months for Charge 1. 

17.Given the gravity of the offence, the personal circumstances of the defendant persuasively urged upon me by Miss Wu carry little weight.  There should still be a one-third discount for the timely plea.  The defendant is therefore sentenced to 30 months’ imprisonment for Charge 1.

18.As to Charge 2, I adopt a starting point of 3 months and reduce it to 2 months on account of the defendant’s plea.

19.Charges 1 and 2 more or less arose out of the same incident and their sentences should be served concurrently.  The defendant is therefore sentenced to an imprisonment of 30 months in total for both charges.