HKSAR v. Chan Yuen Ping

DCCC 994/2023

[2024] HKDC 960

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 994 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon her own guilty plea of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong. The dangerous drug involved was 5.58 grammes of heroin hydrochloride.

FACTS

2.At about 2:25 pm on 13 June 2023, a police officer saw the defendant attach an iron box with a piece of magnet underneath a chair at Yuen Long Jockey Club Health Centre, No 269 Castle Peak Road-Yuen Long, Yuen Long, New Territories.

3.She was then intercepted. Upon search of the aforesaid iron box, 49 plastic straw packets containing a total of 7.41 grammes of a mixture containing 5.58 grammes of heroin hydrochloride (the “DD”)  were found.

4.Under caution, the defendant said inter alia that she possessed the DD for her own consumption.

5.The police also found from the defendant cash in the sum of HK$2,738.5, a mobile phone and a notebook showing suspected dangerous drugs trafficking transactions.

6.The estimated street value of the DD was HK$5,301.

THE DEFENDANT’S BACKGROUND AND PREVIOUS RECORD

7.The defendant was born in October 1976 and is now 47 years old. She is divorced. Prior to her arrest in this case, she was unemployed and lived with her son in Yuen Long.

8.She has 41 criminal convictions resulting from 34 cases, out of which there were 3 convictions of possession of dangerous drugs sentenced in 1993, 1994 and 1997. She also has 35 convictions of theft.

MITIGATION

9.Ms Ho referred this Court to R v Lau Tak Ming & others [1990] 2 HKLR 370 and submitted that trafficking in 5.58 grammes of heroin would attract a starting point of 44 months’ imprisonment.

10.Ms Ho also submitted that a significant portion of the DD was for the defendant’s own consumption and therefore asked for a reduction of sentence of 10% to 25% from the starting point: HKSAR v Chow Chun Sang [2012] 2 HKLRD 112 and HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69. In this connection, it was submitted that:

(1)  The defendant was a drug addict and she used to consume 0.5 gramme to 1 gramme of heroin per day;

(2)  49 plastic straw packets containing a total of 7.41 grammes of a mixture translated into an average of 0.15 gramme of a mixture per plastic straw packet;

(3)  On the basis that the defendant would consume 0.5 gramme to 1 gramme of heroin per day, she would consume 3 to 6 plastic straw packets per day and so the DD would feed her addiction for approximately 8 to 16 days;

(4)  The defendant’s son used to give HK$5,000 to HK$8,000 to the defendant per month. She purchased the DD from an unknown male at about HK$4,770 on the day in question. (The estimated street value of the DD was HK$5,301.)  The defendant had the means to support her drug addiction;

(5)  The defendant purchased the DD on the day in question. She went to the offence location to meet her friend. For fear of being stopped or searched by the police at the offence location, the defendant concealed the iron box underneath the chair; and

(6)  Test result of urine specimen collected from the defendant on 16 June 2023 showed that the defendant’s urine contained benzodiazepine, cocaine and opiate which is a derivate of morphine/‌heroin.

SENTENCE

11.Applying the sentencing guideline set out in Lau Tak Ming, I will adopt a starting point of 44 months’ imprisonment in this case.

12.Regarding the mitigation submission that a significant portion of the DD was for the defendant’s own consumption, I have the following observation:

(1)  The defendant chose not to give evidence to substantiate the quantity of dangerous drug(s)  she would consume each day, or call expert to support her allegation;

(2)  As such, there is no evidence to substantiate the allegation that the defendant consumed 0.5 gramme to 1 gramme of heroin per day;

(3)  If the DD were sufficient to feed the defendant’s addiction for 8 to 16 days as alleged and on the basis that the defendant paid HK$4,770 for the DD, the defendant would have to spend about HK$8,943.75 [1] to HK$17,887.5 [2] per month to feed her heroin addiction. This is beyond her means as she was unemployed and was only given HK$5,000 to HK$8,000 per month by her son. Furthermore, the urine test result showed that her urine also contained benzodiazepine and cocaine. Obviously the defendant had to spend extra money to feed her addiction to dangerous drugs other than heroin and so her means was not good enough to support her addiction to various dangerous drugs; and

(4)  The fact that she attached the iron box containing the DD underneath a chair shows that she was parting the DD from herself. The allegation that she was going to meet a friend there also shows that she attached the iron box containing the DD underneath a chair so that her friend could take possession of the iron box subsequently.

In light of my aforesaid observations and without holding a Newton Inquiry, I am not satisfied that a significant proportion of the DD was for the defendant’s own consumption. The fact that the urine test showed that her urine contained opiate does not show that part of the DD, no matter how little it was, would be used for her own consumption. Indeed, the way she disposed of the DD, ie attaching the iron box containing the DD underneath a chair, shows that she was parting the DD from herself. As such, I refuse to exercise my discretion to give her any sentence reduction on the allegation that “a significant portion” of the DD was for the defendant’s own consumption.

13.One-third discount is given to the defendant for her timely indication of guilty plea. There being no further valid mitigating factor justifying further reduction in sentence, the defendant is sentenced to 29 months and 10 days’ imprisonment.