HKSAR v. Tong Wing Suet, Sharon and Another

(Consolidated)
DCCC1237/2010 & 264/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1237 OF 2010 & 264 OF 2011

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Reasons for Sentence

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The Charges

1.The 1st Defendant pleaded guilty to one charge of “permitting a divan”, contrary to sections 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (“the Ordinance”) (2^nd charge) and one charge of “possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to sections 36(1) and (2) of the Ordinance (3^rd charge).

2.She pleaded not guilty to one charge of “trafficking in dangerous drugs”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (1^st charge) laid jointly against her and the 2nd Defendant. Upon the application of the prosecution, this charge against her was ordered to be left on the court file and not to be proceeded with without the leave of the court. 

3.The 2nd Defendant pleaded guilty to the 1^st charge of “trafficking in dangerous drugs”.

The Facts

4.These offences came to light when the police mounted an anti-drugs operation near the 1st Defendant’s premises on 6 July 2010. At the time, the 1st Defendant was seen coming out from the premises and was seen loitering in the corridor suspiciously. When the police approached the 1st Defendant and revealed their identity, the 1st Defendant immediately ran into the premises and locked the door. The police eventually had to force open it. It was later found out that the 1st Defendant lived in one of the rooms inside the premises.

5.After searching the room in which the 1st Defendant resided, the police found the drugs particularized in the 1^st charge, and other paraphernalia including bottles inserted with straws, aluminium foils, scissors, empty plastic bags and an electronic scale. When being interviewed under caution, the 1st Defendant said that she lived in the room with the 2nd Defendant, her boyfriend; she was aware that people would go to her room to store and retrieve drugs; she was an addict herself and she had used one of the bottles found in the premises to consume drugs. The remaining bottles had been used by others. It was also agreed that the 1st Defendant was the tenant of the room and she started renting the place at the rental of HK$3,000 starting from June 2010. These were the subject matters of the 2^nd and the 3^rd charges.

6.The 2nd Defendant, when he was arrested in September 2010, initially denied that the drugs belonged to him. He, however, asked to see the police on 15 March 2011 and he then admitted under caution that all the drugs found in the room actually belonged to him. This formed the basis of the first charge laid against him.

7.The estimated street value of the drugs was about HK$12,700.

Mitigation – the 1st Defendant

8.The 1st Defendant is now aged 16 and has a clear record. She was 15 at the time of the offences. In mitigation, it was said that the 1st Defendant did not receive any financial benefits by allowing others to take drugs in her premises. Those were indeed the 2nd Defendant’s friends and the drugs did not belong to her.

9.After hearing the 1st Defendant’s mitigation, I adjourned sentence to today in order that a background report and a Training Centre Report could be prepared.

10.The reports disclosed that the 1st Defendant came from a broken family and she was raised by her maternal grandmother until 2006 when she moved to live with her mother. It was reported that the 1st Defendant’s academic performance and her conduct were both satisfactory during her early years as her grandmother was strict in discipline. However, after she had returned to live with her mother, her performance started to drop and she also started to play truancy. Instead of studying, she would frequent shopping malls and karaoke lounges with her friends. Eventually, in January 2008, she dropped out from the school with her mother’s consent. She was then studying Form 2.

11.After leaving school, the 1st Defendant had worked as a shampoo girl for one month and had worked as a salesgirl for one week. For the rest of the time, she simply hanged out with her peers in bars and pubs. She started taking ketamine in 2008 and she started consuming other drugs in January 2010.

12.The 1st Defendant came to know the 2nd Defendant in a bar in early 2010. In June 2010, she moved to live with the 2nd Defendant in the room in question. It was reported that the 1st Defendant often took drugs with the 2nd Defendant and their friends while they lived there.

13.In order to be able to pay the 1st Defendant daily visits during her remand, it was reported that the 1st Defendant’s mother had quitted her full-time job and is now working on a part-time basis. The mother expressed that she would give the 1st Defendant full support to help her turn over a new leaf.

14.Although both the 1st Defendant and her mother indicated to the interviewing officer that the 1st Defendant does not want to be admitted to the Training Centre as she would like to get enrolled in a design course, they should understand that their wishes have no part to play in this sentencing exercise and it is for the court to decide how best it is to deal with the 1st Defendant.

Mitigation – the 2nd Defendant

15.The 2nd Defendant is aged 42 and is divorced. He was educated up to Form 3 level. Prior to his arrest, he had worked as a part-time waiter, earning about HK$7,000 to HK$8,000 per month.

16.The 2nd Defendant has been before the court on 14 previous occasions with 17 conviction records. Three of those were “trafficking in a dangerous drug”, six were “possession of a dangerous drug”, one was “possession of a Part I poison”. He also has three “theft” convictions. On 17 June 2011, the 2nd Defendant was sentenced to concurrent terms of 8 years’ imprisonment for his two “trafficking” offences.

17.In mitigation, it was said that the 2nd Defendant was merely given the drugs for custody by his friend when his friend moved out from the building in which they both resided. It was therefore submitted that the 2nd Defendant had no intention to sell the drugs.

18.Why someone would give such a large amount of drugs to a drug addict for safe-keeping is beyond my comprehension. Moreover, I note that the drugs were stored in two different boxes. When asked why that was so and why the drugs were not kept together if they were given to the 2nd Defendant by his friend, Mr. Wu replied that the 2nd Defendant received those two boxes in one lot. Again, that did not make much sense.

19.Further, it was stated in the Summary of Facts that empty plastic bags and an electronic scale were found inside the room. I have no doubt that the plastic bags and the scale were to be used in connection with the drug trade. The 2nd Defendant’s claim of having the drugs merely for safe-keeping is certainly untrue. In any event, by receiving the drugs into his custody, the 2nd Defendant was still “dealing in/with” the drugs. In other words, he was still trafficking in the drugs and getting himself involved in the drug trade.

20.Finally, Mr. Wu urged the court to apply the totality principle in view of the fact that the 2nd Defendant is now already serving a term of 8 years for other “trafficking” offences.

Sentencing Considerations - the 1st Defendant

21.I should say at the outset that a sentence of 1 to 2 years’ imprisonment is not uncommon for the offence of “permitting/keeping a divan” (see e.g. HKSAR v Lam Lai Chu Patsy CACC 56/2003, 6 August 2003, (unreported) and HKSAR v Tsang Hin Chung CACC 113/2004, 2 June 2004, (unreported)).

22.In this case, the 1st Defendant was well aware of the storage of drugs by others in the premises and she also admitted that people did go to her premises to take drugs. In fact, on the day of the police search, a total of 6 bottles which were used for drug inhaling purpose were found inside the room. Given these facts, I would have no hesitation in sentencing the 1st Defendant to imprisonment if not because of her age.

23.However, when dealing with young offenders like the 1st Defendant, reformation is one of the prime considerations. As far as possible, young offenders should not be sent to the prison and the court would consider how best it is to deal with them, given the nature and circumstances of the offence, the interest of the community, and the offender’s character and previous conduct.

24.In Wong Chun Cheong and HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal had examined the circumstances under which a Training Centre order is to be imposed and what the relevant considerations are.

Sentencing the 1st Defendant

25.In this case, after considering the relevant facts, all the mitigating factors put forth, in particular, the 1st Defendant’s clear record, her age, and her background, I consider that a Training Centre order is the most appropriate way to deal with the 1st Defendant.

26.Based on the information available, I have no doubt that the 1st Defendant is susceptible to influence and would easily be abused by her adult peers. A telling example was that when she co-habitated with the 2nd Defendant, she was made the tenant of the room concerned despite the fact that she was unemployed at the time and did not have any means to pay the monthly rental. Clearly, it was the 2nd Defendant’s idea to have her so named in order that the 2nd Defendant could distance himself from the drugs stored inside the room in case anything happened.

27.Therefore, if the 1st Defendant were to be left on her own, I reckon there is a high likelihood that she would be led astray again. In the interest of the community and for crime prevention, I agree with the reporting officer that a period of disciplinary training coupled with statutory supervision is beneficial to the 1st Defendant. Such training and supervision would not be available if a term of imprisonment were to be imposed.

28.I therefore make a Training Centre order in respect of each of the charges (charges 2 and 3) to which the 1st Defendant pleaded guilty.

Sentencing Considerations - the 2nd Defendant

29.In this case, multiple drugs were involved in charge 1. The Court of Appeal has pointed out in a number of decisions that there are two sentencing approaches, that is, the “individual approach” and the “combined approach”, to be adopted where a Defendant trafficks in more than one type of dangerous drugs (see, e.g. HKSAR v Ko Ka Hing [2009] 4 HKLRD 856).

30.In the present case, since the drugs were not mixed together, I consider the “individual approach” to be more appropriate.

31.For trafficking in methamphetamine hydrochloride, that is, “ice”, the tariff was laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004 (unreported). For trafficking up to 10 grammes of ice, a term of imprisonment of 3 to 7 years is called for. In the present case, having considered the facts and the amount (5.89 grammes) involved, I consider a starting point of 4 years to be appropriate.

32.As regards trafficking in ketamine, the tariff was laid down in SJ v Hii Siew Cheng ＆ Another [2009] 1 HKLRD 1. Trafficking in 50 to 300 grammes of ketamine would attract a term of imprisonment of 6 to 9 years. The amount involved in this case was 74.84 grammes. I am going to adopt a starting point of 6 years and 3 months given this amount and the facts of this case.

33.Since the amount of nimetazepam was very small (only 0.07 grammes), I am going to ignore this drug when deciding on the sentence. This practice was considered in HKSAR v Wong Kam Wo [2001] 2 HKLRD 290 as correct. 

34.Now, if the starting points adopted for the ice and the ketamine were to be simply added together, this would result in an overall starting point of 10 years and 3 months. Such is too excessive a sentence on the facts of this case.

35.Overall, I consider that 7 years should sufficiently reflect the seriousness of the 1^st charge and I am going to adopt this as the starting point for the charge.

Sentencing the 2nd Defendant

36.One strong mitigation for the 2nd Defendant is his plea. I am also going to give him some reduction for the confession he made as the 2nd Defendant, after his unconditional release by the police, later voluntarily told the police that the drugs actually belonged to him. Therefore, I would reduce the term of 7 years to one of 50 months.  

37.Insofar as his current sentence is concerned, it was accepted that he committed those offences after his commission of the offence in charge 1 here. Those, however, were also “trafficking in dangerous drugs” offences. Mr. Wu has provided me with the information concerning the drugs in that case and they were mainly ice and ketamine.

38.While those offences were separate and distinct ones and, in principle, the present sentence should run consecutively to his existing term, after considering the totality principle, I am going to order that 25 months of the 50-month term for charge 1 are to run wholly concurrently with the 2nd Defendant’s existing term of 8 years, the rest to run wholly consecutively.

Please refer to CACC331/2011 for the relevant appeal(s) to the Court of Appeal.