HKSAR v. Chan Sze Ki

HCCC 377/2019

[2020] HKCFI 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 377 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The Charge and Plea

The defendant pleaded guilty to one charge of trafficking in a dangerous drug in the court below and admitted the facts pertaining to the charge. She confirmed her guilty plea and her admission of the Summary of Facts before me today. I convict her of the charge of trafficking in a dangerous drug on her own plea and admission.

The offence took place on 7 October 2018 inside a game centre located at Ground Floor, No 98 Lai Chi Kok Road, Mongkok, Kowloon in Hong Kong. The defendant trafficked in a dangerous drug, namely, 68.2 grammes of a mixture containing 60.37 grammes of heroin hydrochloride.

The Facts

The Summary of Facts dated 1 November 2019 reveals that at around 5.41 pm on 7 October 2018, the defendant was intercepted by police officers inside a game centre located at No 98 Lai Chi Kok Road, Mongkok, Kowloon. Upon a search, an officer took out a pouch bag (Exhibit 2) in the concealed compartment of the handbag (Exhibit 1) possessed by the defendant. At that point, the defendant tapped the officer’s hand which caused E2 to drop on the ground. At the same time, the defendant shouted, “Don’t arrest me” and she was eventually subdued.

The officers immediately picked up Exhibit 2 and asked the defendant what was contained inside, to which the defendant replied that it was white powder. The defendant was then escorted to ground floor, No 98, and Exhibit 2 was found to contain four packets of dangerous drugs subsequently examined and found to be 68.2 grammes of a mixture containing 60.37 grammes of heroin hydrochloride. The defendant was arrested. Under caution, she stated that the drugs were for her own self-consumption.

Inside the defendant’s handbag, Exhibit 1, was found a mobile phone with one SIM card, another SIM card, HK$336.5, cigarettes, a lighter and some make-up items.

A video-recorded interview was conducted with the defendant at 4.24 to 4.45 pm on 8 October 2018. She admitted, inter alia, the following:

(1) The drugs were bought from a male, Ah Yeung, whom she got to know for years but she did not have his contact details and the drugs were for her consumption.

(2) At about 3 pm on 7 October 2018, she met a person sent by Ah Yeung who sold her the drugs at a price of $15,000. She then put the drugs in her handbag and went to the game centre in Mongkok area for fun.

(3) She consumes drugs three to four times a day by means of inserting the drugs into a cigarette but had no idea of her daily dosage.

The defendant’s urine test taken shortly after her arrest indicated positive for methamphetamine but negative for heroin hydrochloride.

The estimated retail value of the drugs seized amounts to $48,839.33. The defendant now admits that at the material time, she was in possession of the seized dangerous drugs for the purpose of unlawful trafficking.

Antecedent

The defendant is now 26 years old, locally born. She received education up to Form 4. According to her antecedent statement, she worked as a part-time actress at the time of the offence. The criminal record of the defendant shows that she had been twice convicted of possession of dangerous drug. That is in 2009 and 2017 respectively. She had also been convicted of theft in 2011 and 2015 and assaulting occasioning actual bodily harm in year 2007. She had been sentenced to DATC in 2011, 2015 and 2017.

Mitigation

Ms Lee tells me in mitigation that although the defendant is single, she has two sons. The elder son is now 12 years old and is in the care of the elder sister of the defendant. The younger son, aged 5, is in the care of a childcare agency because the father of the son is serving a prison term.

Ms Lee submits that the defendant was a drug addict. As the criminal record shows, she had been sentenced to DATC for her last three convictions. Since her last discharge from DATC, she was only able to work as a part-time actress and part-time salesperson, earning around $10,000 per month. She wanted to lead a normal family life with her boyfriend and younger son but her boyfriend, a drug addict, would resort to violence every now and then and the defendant suffered much as a result and was under great pressure. Finally, the defendant took ‘Ice’ to release her pressure.

Ms Lee submits that the defendant committed the present offence because the boyfriend had told her to do it for him or else he would leave the defendant and his son. The defendant felt she could only obey and, hence, she committed the offence. With the help of the Society of Rehabilitation and Crime Prevention, the younger son had visited the defendant during her remand. The boy often asked the defendant when she could go home. The defendant now realised the mistake she made was due to her stupidity and stubbornness in her love towards her boyfriend.

Ms Lee also submits the following documents:

(1) a two-page mitigation letter written by the defendant;

(2) a document which states that the younger son of the defendant is suffering from a medical condition, that is, borderline delay with attention deficit/hyperactivity disorder;

(3) a drawing done by the younger son and a photograph that the defendant took with her younger son;

(4) an official receipt for a distance learning certificate course on practical purchase management issued to the defendant.

Considerations

I have considered the nature and the quantity of the dangerous drugs involved, the facts, the background of the defendant, everything said on the defendant’s behalf by counsel in mitigation and all the materials placed before me.

I reject the defendant’s claim in her video-recorded interview that the dangerous drugs found on her were for her self-consumption. The result of the urine test taken shortly after the defendant’s arrest refutes her claim that she consumed heroin three to four times a day. If there is any truth in the defendant’s claim that she had been consuming heroin three to four times a day, the urine test result would not be positive for methamphetamine but negative for heroin hydrochloride. Ms Lee in fact acknowledges that the defendant was an abuser of ‘Ice’, not heroin. I shall sentence the defendant on the basis that all the heroin found on her was for unlawful trafficking.

This case concerns 60.37 grammes of heroin hydrochloride. The quantity falls within the band of 50 grammes and 200 grammes in R v Lau Tak Ming & Another [1990] 2 HKLR 370 and, hence, calls for a starting point of 8 to 12 years’ imprisonment. Bearing in mind the quantity of heroin hydrochloride and the facts of the case, a starting point of 8 years and 3 months is appropriate, and I take that as the starting point.

The defendant is entitled to one-third reduction for her timely plea. That will bring the starting point down to 5½ years. That is 66 months. Apart from the guilty plea, all the other matters urged on the defendant’s behalf by Ms Lee do not amount to mitigating factors that can further reduce the sentence. I am sympathetic to the sons of the defendant but the family difficulties of the kind outlined by Ms Lee do not amount to valid mitigating factors. The defendant should have thought about the welfare of her sons before she committed the present offence. It might be true that the defendant committed the offence under the influence of her boyfriend but it does not, in my judgment, amount to a valid mitigating factor either.

The defendant says in her mitigation letter that she had a very unhappy childhood, but that gave her no excuse to traffic in dangerous drugs. She was a full-grown adult at the time of the offence. In the past, she was put on probation thrice: on 2007, 2009 and 2011, and was sentenced to DATC in 2011, 2015 and 2017. In other words, the defendant had been given numerous opportunities by the court in the past but she did not cherish the opportunities given to her.

For the reasons given, I sentence the defendant to 5½ years’imprisonment.