HKSAR v. Cheng Wai Fong, Maggie

DCCC 945/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 945 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Possession of dutiable goods" (Charge 2).

2.The dangerous drug involved is ICE and the dutiable goods are cigarettes.

Summary of Facts

3.About 4:00 p.m. on 14 July 2013, WPC 10688 (PW1) spotted the defendant near the junction of Yuen Long Tung Tai Street and Yuen Long Tai Hang Street.  PW1 and another police officer followed her and stopped her for enquiry.  The defendant was then taken to the Tung Tai Street Refuse Collection Point for a search.

4.Upon search of the defendant's beige bag, a black and red bag was found, which contained the following :-

(i) a small leather pouch containing 2 plastic bags which contained a total of 2.27 grammes of a crystalline solid containing 2.23 grammes of methamphetamine hydrochloride;

(ii) a metal box containing 2 plastic bags which contained a total of 0.53 gramme of a crystalline solid containing 0.53 gramme of methamphetamine hydrochloride and 22 empty plastic bags;

(iii) a yellow cloth bag containing 13 plastic bags which contained a total of 2.44 grammes of a crystalline solid containing 2.39 grammes of methamphetamine hydrochloride;

(iv) a blue plastic box containing 13 plastic bags which contained a total of 3.97 grammes of a crystalline solid containing 3.90 grammes of methamphetamine hydrochloride;

(v) an electronic scale with traces of a powder containing methamphetamine; and

(vi) a notebook containing records of suspected transactions of dutiable cigarettes.

5.From the defendant's rucksack, the Police found a total of 1,340 cigarettes contained in 67 packets.  Out of those 67 packets, 24 do not bear the prescribed health warning and 34 bear the mark HKDNP.  No duty on the cigarettes was paid.  The duty avoided was $2,286.

6.In her video recorded interview, the defendant admitted that all the drugs and cigarettes belonged to her.  She purchased the ICE at $3,000 for her own consumption and distribution to others.  The notebook contains records of her purchase of cigarettes for self-consumption.

Mitigation & Sentence

7.The defendant is now 40 and has 4 conviction records, 3 of which are "simple possession".  She was last sentenced to a Drug Addiction Treatment Centre on 30 July 2013.  Defence counsel Mr. BOK informed me that the defendant completed her addiction treatment at the end of January this year.

8.Mr. BOK also informed me that prior to the present offence, the defendant worked as a waitress in Tai Po earning about $8,000 per month.  She would contribute $3,000 to her aged parents each month.

9.In mitigation, Mr. BOK submitted that the defendant was cooperative with the Police throughout.  She decided to plead guilty to both charges one week before trial and her solicitors have alerted the Prosecution and court in a timely manner.  A bundle of letters was placed before me; their contents are duly noted.

10.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125). For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.

11.In Charge 1, the defendant trafficked in 9.05 grammes of ICE.  I adopt 6.5 years' imprisonment as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 52 months.  I note that there is evidence suggesting that the defendant is a drug addict and that she has claimed partial consumption in her video recorded interview.  Although no mitigation on this point was advanced by her counsel, I will grant her a nominal discount of 4 months to reflect this.  Apart from this, I see no other mitigating factors which warrant any further discount. Hence, I sentence the defendant to 4 years' imprisonment for Charge 1.

12.In Charge 2, the defendant possessed 1,340 sticks of cigarette.  Despite the presence of a notebook which contains records of cigarette transactions, it is fortunate for the defendant that the Prosecution has decided to charge her with the lesser offence of "possession" rather than "dealing with".  I adopt a starting point of 3 weeks' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 weeks.  The sentence for Charge 2 is 2 weeks' imprisonment.

13.In my view, although the defendant possessed the ICE and cigarettes simultaneously, Charges 1 and 2 are separate and distinct since the nature of the subject matters is completely different.  Mr. BOK has invited the court to order the sentence for both charges to run concurrently.  I take a different view.  Having considered the totality principle, I order the sentence for Charge 2 to run consecutive to Charge 1, thereby arriving at a total prison term of 4 years and 2 weeks for both charges.