HKSAR v. Au Chun Tung and Another

DCCC 974/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 974 OF 2013

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REASONS FOR SENTENCE

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1.Au Chun Tung you have pleaded guilty to one charge of trafficking in 8.76 grammes of a crystalline solid containing 8.59 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 2), and one charge of wilfully obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Chapter 212 (charge 3).

2.Ng Wing Ki you have pleaded guilty to one charge of possession of 20.56 grammes of herbal cannabis, contrary to section 8 of the Dangerous Drugs Ordinance (charge 4).

3.In summary in the evening of the 23 July last year the police conducted an anti–drugs operation outside Room 3018 Siu Lung House in Chai Wan.  At about 6.43 p.m. D1 was seen leaving Room 3018.  The police approached and revealed their identity whereupon D1 immediately returned to Room 3018 and closed the iron gate.  With the use of a baton the police were able to prevent the wooden door from being closed.

4.When D1 tried to remove the baton he was warned that the police would enter by force if the door was not opened.  D1 did not immediately open the door and only after the police had tried to prize open the iron gate did D1 open both the wooden door and iron gate at about 6.45 p.m.

5.Meanwhile police observing from the 34th floor saw a hand throw out something from a window of the bedroom occupied by D1 and D2.  This landed on the podium and scattered into pieces on the podium and the ground floor.  The police recovered from the podium and the ground floor various plastic bags which on examination were found to contain the ice and some of the cannabis. 

6.The police searched the bedroom of the defendants where they found more cannabis; one pack of straws; 99 new transparent re-sealable plastic bags and two glass bottles containing ice.  Below the window sill of the bedroom the police also found an electronic scale, a piece of tin foil and one trimmed playing card.  Under caution D2 admitted the cannabis belonged to her which she took to help her sleep. 

7.In passing sentence I have carefully considered everything said on your behalf by Mr Ng, in particular that D1 has elderly parents to care for and that D2 is pregnant.  I also take into account the content of D1’s mitigation letter submitted to court today.

D1

Trafficking in a dangerous drug

8.In Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment.  In HKSAR v Capitania Edwin F.CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes. I am satisfied the proper starting point after trial for 8.59 grammes of ice is 6 years and 6 months imprisonment. 

9.You have a criminal record including two similar convictions for trafficking in dangerous drugs in 2010 when you were sentenced to a total of 5 years and 4 months imprisonment.  You were released from prison on the 2 January last year.  Clearly that sentence had no deterrent effect on you for in just over 6 months you were again trafficking in a relatively large quantity of ice.  In these circumstances I increase the starting point by 3 months to 6 years and 9 months imprisonment. 

Own use

10.I am told that after your release from prison you relapsed into taking ice due to pain suffered as a result of osteoarthritis.  Mr Ng says that you would take 0.7 grammes of ice each day and that half of the ice found by the police was intended for your own use.  You had purchased the ice the day before for $3,000-4,000 and intended to resell half to cover the cost of purchasing the drugs.   

11.Taking into account two glass bottles fit and intended for the inhalation of ice and which contained some ice were found in your bedroom and that you have been to the DATC, albeit back in 1994, I am prepared to accept that some of the ice may have been for your own use.  In view of the packaging of the ice in severalplastic bags and that 99 new transparent re-sealable plastic bags and an electronic scale were also found I do not accept that as much as half was for your own use.

12.In deciding how much weight should be attached to the fact some of the drugs may have been for your own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 the Court of Appeal held that depending on the individual circumstances the discount for own use should be between 10% and 25% of the basic starting point. 

13.In Chow Chun Sang the appellant pleaded guilty to trafficking in 7.22 grammes of ice.  The trial judge accepted half was for his own use   and reduced the starting point from 5 years and 10 months to 5 years and 3 months which represented a 10% discount from the starting point.  The appellant had a criminal record said to be worse than in other cases but none for trafficking. The Court of Appeal having borne in mind the previous convictions and that the offence was committed when the appellant was wanted having failed to attend court for other drug offences, held that whilst a 7 month discount was on the conservative side the sentence was not manifestly excessive.  

14.Taking into account the quantity of ice; the packaging together with an electronic weighing scale and 99 new re-sealable bags suitable for trafficking; that you have previous convictions for trafficking; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 9 months to 6 years.  Taking into account your plea of guilty and all the circumstances you are sentenced to 3 years and 7 months imprisonment.

Possession of apparatus fit and intended for inhalation of ice

15.For possession of apparatus I am satisfied that a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 2 months imprisonment. Having taken into account the equipment in the trafficking charge a concurrent sentence is appropriate. 

Wilfully obstructing

16.The obstruction in this case whilst not long was sufficient to throw away the ice. Had the police not been observing the bedroom they may well not have found the ice.  In the circumstances I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 2 months imprisonment.  The obstruction whilst related to the drug offences is nevertheless a separate and distinct offence for which a consecutive sentence is appropriate.

D2

17.The DATC report reveals a long history of drug taking starting in 2002 with ice; heroin in 2009; cough syrup and Zopiclone also in 2009 and cannabis in 2013. To support your drug habit you committed a series of offences of dishonesty in 2009 and 2010 for which you received sentences of probation, DATC and imprisonment. 

18.The medical officer has confirmed you are pregnant with the expected date of delivery on or about 16 March.  Notwithstanding your long history of drug taking and that you last consumed ice and cannabis a few days before you were arrested you are found to be no longer a drug dependant.  Hopefully you will stay that way so you can bring up your baby and enjoy motherhood.  

19.Taking into account the quantity of cannabis; the cannabis is herbal cannabis and not the more potent resin; and although you have been to DATC in 2010 you have no prior drug convictions, I am satisfied a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 2 months imprisonment. 

Sentence

20.The defendants are convicted and sentenced as follows:

D1

Charge 1 – 3 years and 7 months imprisonment;

Charge 2 – 2 months imprisonment concurrent to charge 1;

Charge 3 – 2 months imprisonment consecutive to charges 1 & 2.

D1 you will serve a total sentence of 3 years and 9 months imprisonment which I am satisfied properly reflects your criminality on the three charges.

D2

Charge 4 – 2 months imprisonment.