HKSAR v. Chan Sui King and Another

HCCC 81/2021

[2021] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 81 OF 2021

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  24 September 2021

Date of Reasons for Sentence:  24 September 2021

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REASONS FOR SENTENCE

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1.Both defendants pleaded guilty before the Eastern Magistrate’s Court on 15 March 2021. They appear before this Court for sentence. The first defendant, Chan Sui-king (“Chan”), falls to be sentenced under Count One for trafficking in 24.8g of Heroin Hydrochloride, contrary to s4(1)  (a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, (“the DDO”)  and under Count Three of permitting a place to be used for unlawful trafficking in or storage of a dangerous drug, contrary to section 37(1)  (a)  and (2)  of the DDO. The second defendant, Siu Yuk-leung, Vicky (“Siu”), also falls to be sentenced under Count One for trafficking in 24.8g of Heroin Hydrochloride, contrary to s4(1)  (a)  and (3)  of the DDO and under Count Two for trafficking in 134.99g of Heroin Hydrochloride under the same section. They have both confirmed their pleas. The Summary of Facts which formed the basis of those pleas has been read out and agreed.

2.All three counts relate to premises at Room A3204, Man Wah House, Lok Wah South Estate, No 70 Chun Wah Road, Sau Mau Ping, which was the home address of Chan, who lived there with her late husband.  An anti-narcotics operation was carried out on 12 March 2020, in the vicinity of Man Wah House.  Chan was observed coming out of Room A3204 holding a pink plastic bag.  When the police sought to apprehend her, she struggled with them but was subdued.  A search of the pink plastic bag revealed 8 re-sealable plastic bags, which contained a further 160 packets of Heroin Hydrochloride.  These drugs form the basis of Count One. Upon arrest and caution, Chan told the police she had been instructed by ‘Ah Leung’, her co-defendant, to place the bag in a flower bed.  It was to be picked up by someone else.

3.Chan was taken back to her residence at Room A3204, where the police found Siu in the living room. Upon search, further drugs were found on a table in the living room as well as other drug paraphernalia including electronic scales and scissors.  Underneath the table the police found a substantial quantity of drugs and yet another electronic scale and other associated items.  Two large sums of money, $30,580 in a black box and $31,000 in a blue bag, were also recovered.  On arrest and under caution, Chan maintained the drugs belonged to Siu and Siu accepted that he intended to sell them on.

4.In interview, Chan said that all of the drugs found in her room belonged to Siu and that she was helping Siu when she went down to place the pink plastic bag in the flower bed outside of her residence.  She maintained that she did not know who was to collect the drugs.  She did receive a direct reward for doing so but he helped her out with general expenses such as meals.  She said they had not discussed a salary which tends to suggest there was some sort of commercial relationship between them but that is not the basis upon which she is to be sentenced.  As a heroin addict she was supplied with drugs by Siu.  She did not say she paid for them.  I doubt if she did and I provided Chan with the opportunity to give evidence on the issue without penalty if she wished.  She said the $31,150 found in the black wallet and blue bag belonged to her and in interview suggested that it had been her savings from severance pay.  This was despite the fact that she was living off CSSA for many years and the fact that Yam, her late husband, was unable to work and that she worked part-time only in a restaurant but had long since been let go.  She has not been able to provide a legitimate source for those funds.  She was once again invited to explain to the court the actual source of the funds but declined to do so.

5.Siu accepted in interview that he owned all of the drugs.  He had purchased them from someone else and had asked Chan if he could stay in their Room as he had nowhere else to stay.  He had moved in just a week or so before arrest.  He had asked Chan to take the drugs found within the pink plastic bag downstairs for someone to pick up in the morning.  He, like Chan, was living off CSSA and he, like Chan, was an addict.  He suggested that he consumed approximately 1 to 2g per day. The $31,000 found in the black box were the proceeds of trafficking.

6.The total value of the drugs recovered was $169,229.

Mitigation

7.Chan is now 53 years old and has been an addict for very many years.  She was previously married to Siu, who is also an addict and I understand her late husband, whom she married in 2015, was an addict as well.  Her late husband had been housebound at the time of the offending and Chan had been his carer relying upon CSSA and part-time work in a restaurant to support themselves and their drug habit.  Her part-time work ceased as a result of the social unrest of 2019, when the restaurant she worked in closed down.  Her troubles have been made worse in the intervening period since her arrest and remand.  Her husband passed away in March of this year and, as a result, she has lost her home as he held the tenancy to their public housing flat.  I am very sorry for her loss.  It must have been difficult to deal with whilst on remand.

8.The reality of Chan’s offending is this.  She is an addict and has been for a very long time.  That is unlikely to change, although this period of custody may at least assist.  She is clearly remorseful now but she gave Siu a place to stay because it benefitted her and her husband as he was dealing in drugs and she no doubt received some for free and assisted him in carrying the drugs, in this instance to the flowerbed, in order to feed her habit and that of her husband.  I take the view that these were part of the ‘expenses’ which Siu helped her with.  She could not have afforded her habit otherwise. Chan knowingly allowed Siu to store drugs in her flat and to traffic in drugs from her flat whilst he lived with her, which was for a short period of time before her arrest.  She accepted she assisted him in his endeavours.  For the purposes of assessing her role[1] in this offending, I place it no higher than that.  She was a storekeeper but equally, she could have properly been charged with trafficking in the drugs found in her home.

9.The first defendant has a significant criminal record going back to 1989.  Many of the matters recorded against her are for offences of dishonesty, mostly for shoplifting, although there is one matter of Robbery, and there are two matters for possession of Dangerous Drugs in 1990 and 2000.  But her last offending was in 2006.  I will not take that previous offending into account when sentencing her today other than to note than non-custodial sentences have not deterred her from reoffending in the past, no doubt because she is a long term drug addict.

10.The second defendant is 57 years old.  He is divorced with a son of 33, who is also the son of Chan.  At the time of offending he was unemployed but has worked as a waiter, delivery man and courier in the past.  I am told Chan allowed him to move into her flat temporarily because he had fallen out with the son.  He took full responsibility for the drugs found within the flat and for those found in the possession of the Chan in the pink plastic bag.  He too has a substantial criminal record.  Siu was first before the courts in 1981.  I note that he too was dealt with for Robbery in 1992 along with Chan Sui-king, presumably when they were married, and for which they both received 18 months’ imprisonment. This is not the first time they have appeared before the Court together.  Siu has five matters of possession of Dangerous Drugs recorded against him and two for trafficking, some years apart.  More recently, in 2014 he was dealt with for Trafficking in Dangerous Drugs, for which he received a sentence of imprisonment of 32 months.  He was released in May 2017 and immediately re-offended.  The best I can say is that despite being a drug addict, he has avoided re-arrest from then until March 2020. I will therefore give him the benefit of the doubt and will not enhance his sentence to reflect his re-offending in this case.

Sentencing Guidelines

11.The sentencing guidelines for trafficking in Heroin Hydrochloride can be found in HKSAR v Lau Tak Ming [1990] HKLR 370.  On Count One against both defendants, for trafficking in between 10 and 50g of Heroin Hydrochloride, the range of sentencing after trial is between 5 and 8 years.  For 24.8g therefore, the starting point after trial would be in the order of six years’ imprisonment.  On Count Two, against Siu only, for trafficking in 134.99g of Heroin Hydrochloride, the starting point after trial would be 10 years 3 months’ imprisonment.  However, I note that this could be considered a single event and that the total amount of Heroin Hydrochloride recovered was 159.79g, which would attract a starting point of 10 years 11 months’ after trial if it was considered as a single episode of offending.

S37 Offences

12.I am most grateful to Ms Lai for her robust defence of Chan in attempting to persuade the court to adopt a low starting point for sentence.  Unfortunately, the available case law is of little assistance to the court on the facts of this case.  As McWalters JA stated in HKSAR v Siu Kwok Chun[2], the seminal case for this type of offending can be found in R v Lee Kwok Keung CACC 595/1996, in which the Court of Appeal remarked that the offence carries a maximum sentence of 15 years’ imprisonment.  It is therefore not as serious an offence as that of trafficking in dangerous drugs which carries a maximum sentence of life imprisonment.  Unlike the offence of trafficking in dangerous drugs, the Court of Appeal has not considered it appropriate to lay down any guidelines for sentencing.  It can therefore be construed that the Court’s approach to sentencing for this offence is not one which should be directed first and foremost at the quantity of drugs involved as it is in offences of trafficking where the Court is often dealing with a courier[3]. Under s37, where there are a wide range of circumstances which could amount to the offence being made out[4], the sentencing Court must in each instance consider the whole of the background to the offending in order to ascertain the true culpability of the offender. As McWalters JA put it:

“Here the applicant was charged with the storage version of the offence and that begs the question of storage for what purpose.”

That exercise is carried out by, inter alia, taking into account the background to the offending; the extent of the relationship between the offender and the person for whom he or she stores the drugs in question; the extent of their knowledge as to the quantity and existence of the drugs: the period over which they store the drugs; the extent to which they are involved with the drugs in question or they seek to distance themselves from it and avoid further offending; and the nature of any reward or benefit they may receive for acting as they did[5].

13.As in Siu Kwok Chun, Siu Yuk-leung, Vicky, not only stored his drugs openly within the first defendant’s flat, but he also measured, weighed and packaged them in the flat and Chan accepted she assisted him in taking them to be picked up by a third party in the vicinity of the flat.  Unlike Siu Kwok Chun, knowledge of all of that can be placed squarely at the door of Chan who actively assisted in Siu’s criminal acts.  Chan would, following Siu Kwok Chun be far more culpable than the defendant in that case.

14.A perusal of the authorities placed before the Court[6] and those referred to therein[7] are not entirely of assistance.  Many involve the operation of a divan, which necessarily involve quite low starting points.  Others indicate that, as a rule of thumb, some sentencing Courts have taken the guideline sentence for trafficking in dangerous drugs as a reference point and then used the sentence after plea for the starting point under s37 i.e. one third of the original starting point for trafficking.  That was certainly the case in HKSAR v Lee Kwok Keung.  Whereas, the Court of Appeal did not endorse, as a rule of thumb, a discount of 50% from the trafficking guideline[8] but nevertheless did not seek to adjust such a sentence.

15.In this instance, the first defendant had known the second defendant for very many years, having previously been married to him and had a son by him.  They were still very much in touch for he turned to her for a bed when he fell out with his son. She knew he had a serious drug addiction, as did she, and she no doubt would have known how he managed to feed that habit given his personal circumstances including the fact he was jobless immediately before this offending.  They had obviously remained close.  She had provided him with a place to live with that knowledge and in order to gain access to drugs to feed her own habit and that of her late husband.  The drugs were on open display as was the paraphernalia.  There was clear evidence of recent measuring and packaging for onward sale and the number of small packets of drugs recovered suggested a considerable network of buyers.  The amount of money found in the flat was significant considering both defendants’ impecunious status.  It was divided into two parts of almost equal amounts.  I do not believe that the $31,000 found in her bedside table was anything other than monies from trafficking, as was the money found under the table.  The first defendant admitted she was carrying drugs for the 2^nd defendant and so her role was an active one going beyond the knowing storage of drugs to an intention to actively participate in their onward transmission.  Given the upper range for sentencing of 15 years’ imprisonment and the possible range of participation which would attract sentences at that upper end against those that have been handed down in the last two decades, I consider that an appropriate sentence would be one in line with the approach taken in Lee Kwok Keung which, in comparison to the sentence to be handed down in respect of the second defendant, properly reflects their individual roles whilst at the same time acknowledging the difference in charge.

Sentence

16.Chan Sui-king, under Count One for trafficking in 24.8g of Heroin Hydrochloride, the starting point for sentence after trial would be 6 years’ imprisonment.  Under Count 3, for allowing your premises to be used to store and package 134.99g of Heroin Hydrochloride, I consider an appropriate starting point after trial to be one of 6 years 9 months.  Allowing you a full one third discount after plea at the earliest opportunity you will go to prison for 4 years under Count One and for 4 years 6 months under Count 3.  6 months of your sentence under Count One will run consecutively to your sentence under Count Three making a total term of imprisonment of 5 years.

17.Siu Yuk-leung, Vicky, will also receive a full one-third discount for plea at the first opportunity and will go to prison for 4 years under Count One.   For Count Two, the starting point after trial was 10 years 3 months.  After discount you will go to prison for 6 years 10 months under Count Two, with 5 months of your sentence under Count One to run consecutively to your sentence under Count Two, making a total sentence of imprisonment of 7 years 3 months.

18.In respect of the application for exhibits disposal, I make an order in terms save for the following.  Item 31 is amended to include an application to forfeit $31,000 dollars and I so order. Items 38, 39, 58 to 60 inclusive and 68 are to be returned to the 1^st defendant.

Mr Fergus Chau, SPP (Ag), of the Department of Justice, for HKSAR

Ms Annie Lai, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the 1^st Defendant

Mr Tony Li, instructed by A Lee & Partners, assigned by Director of Legal Aid, for the 2^nd Defendant