HKSAR v. Cheung Ka Yan

HCCC 47/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 47 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has pleaded guilty to one charge of possession of a dangerous drug, namely 27.93 grammes a crystalline solid containing 26.92 grammes of methamphetamine hydrochloride.

The defendant was originally charged with trafficking in this drug, and when she was brought before me she pleaded guilty to possession and this plea was accepted by the prosecution.

So although this plea came at the time it did, nevertheless, it did save the court’s time in that a trial was not necessary. So she is entitled to the full one-third discount.

This court is assisted by the probation officer’s report which I called for, together with a DATC report. It was clear from the DATC report that the defendant is no longer a drug addict.

According to the background report, the defendant, now aged 26, started her working life when she was 17 years old. The defendant had separated from her husband in 2011, and she has a young daughter who is being looked after by her parent-in-law.

The defendant grew up being looked after by her father, and mainly by her grandmother, because her mother had passed away at a young age.

Because of her low academic achievement, the defendant started working at the age of 17. Her marriage broke down because of her husband’s jealousy, and after the divorce she worked and lived by herself.

She started taking “Ice” at the end of 2010, she said, because of her frequent conflict with her husband, and these drugs that she had pleaded guilty to she said she bought them for her own consumption.

The drug total weight of the drugs in the present case is 26.92 grammes of methamphetamine hydrochloride.

Now, in considering the proper sentence in this case, this court is greatly assisted by the list of authorities that Mr Beresford had handed up to this court, in particular the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.

In that case, it was said by the court that there is a three‑step approach to assessing the proper sentence in a case of this nature. It is, first of all, to decide the normal starting point, then the court is to consider the latent risk factor, and then the mitigation in a particular case.

Another helpful case, as Mr Lee pointed out, is the case of Mok Cho Tik [2001] 1 HKC 261 where the Court of Appeal said that the starting point for mere possession of dangerous drugs of a bona fide user would normally be in the range of 12 to 18 months, but that was not the be all and end all of the appropriate starting point, the quantity would be the main governing factor which would determine where the starting point would lie.

The Court of Appeal went on in Headnote 2 of the case to say that:

“The existence of the risk factor and the degree of risk were not a matter of mathematics upon which the court should provide a tariff. Amongst the obvious factors to be taken into account were whether the offender was in employment; whether the drugs were kept in a place to which others had access; whether the offender had convictions for trafficking; and the quantity of drugs.”

The defendant at her arrest was found in premises which she was living in, and she was found sitting on a sofa, and on a coffee table opposite to a sofa were found packets of resealable transparent plastic bags and a calculator. And inside her handbag was a transparent resealable plastic bag containing the drug which is the subject matter of the charge.

The drug’s street value at the time was, approximately, HK$18,908.

Also present at the time with the defendant in the early hours of that morning was another person, but that other person was not charged.

So as can be seen, the latent risk in this case is not negligible.

In the present case, the amount of drugs is 26.92 grammes.

In a case of HKSAR v Chong Heung Sang [2010] HKCU 2450 for 25 grammes of heroin, plus the fact that the man was a recidivist and latent risk the court decided that a 30-month starting point was reasonable.

In this case, although the defendant is not a recidivist, in any event, as I have said the latent risk is not negligible.

I have decide, therefore, the starting point in this case is should be one of 2½ years, plus one year to take into account the latent risk factor bringing the starting point to 3½ years.

Taking into account the fact that the defendant had pleaded guilty, she is entitled to one-third off, so that brings the sentence down to 2 years and 4 months.

So the defendant is sentenced to 2 years and 4 months.

And all I can say is that the defendant is very lucky and, hopefully, she will take advantage of this chance that has been offered to her, and when she gets out of jail to take into account the support of her family and also the interests of her daughter and no longer engage in this evil trade of buying and smoking these drugs.

Please refer to CACC406/2014 for the relevant appeal(s) to the Court of Appeal.