HKSAR v. TSE TSZ KWAN KAY

DCCC 305/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 305 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. The particulars are that on 11 February 2016 in Lower Wong Tai Sin Estate the defendant trafficked in 157 grammes of a powder containing 73.3 grammes of ketamine.

2.  The facts of this case are straightforward.

3.  On that date at about 10 pm, police officers saw the defendant in the vicinity of Lung Cheong House in that estate acting suspiciously.  The police officers stopped the defendant and searched her. Their suspicions were very accurate and in the defendant’s rucksack they found a plastic bag containing the ketamine.

4.  The police did attempt to search her home, but the defendant had no house keys.  Effectively, the defendant at that time had no fixed place of abode.

5.  Under caution, the defendant made a full admission to the police.  She told the police she had been offered $500 to deliver the ketamine to Lower Wong Tai Sin Estate.  She was paid to be a drug mule.  Whilst waiting for the drugs to be picked up, she was seen by the police and then subsequently arrested.  Her reward of $500 was only to be paid after delivery.  She also told the police that she herself was a ketamine abuser. 

6.  The value of the ketamine was estimated to be over $20,000.

7.  The defendant is not a woman with a clear record.  She has two previous convictions; both for trafficking dangerous drugs.  On 8 October 2009 she was sentenced by the District Court to 3 years’ imprisonment for trafficking drugs.  On 20 October 2009 she was sentenced to 20 months’ imprisonment by Kowloon City Magistracy for trafficking dangerous drugs.  For those two offences, she effectively served 4 years and 2 months’ imprisonment.

8.  Defendant is now only 24 years old, which means she was 18 years old when convicted of those previous offences. 

9.  I have seen the reasons for sentence in the District Court case.  The sentencing judge considered Training Centre order, but, after getting Training Centre reports, that sentencing judge found her attitude made Training Centre an inappropriate sentence.  That is why he considered a term of imprisonment the only option.

10.  Since the release from those sentences, the defendant has had a child.  I have been told that the child is now 18 months old.  However, the defendant is now separated from her husband. 

11.  I have been told the defendant had been living with her mother, but living rough at the time of this offence.  She had no fixed place of abode, the reason being she felt under pressure and unhappy. The baby was not planned and she did not know how to be a mother, so she left home.

12.  At present, I have been told that the defendant’s daughter during the week lives with her father and his family and on the weekends the child is with the defendant’s mother, the child’s grandmother. 

13.  The defendant’s mother and husband are in court today.  All say that they do not need any assistance from the Social Welfare Department at the moment.

14.  Where trafficking ketamine is concerned, there is an authority with guidelines.  I have considered the authority of the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  There, the Court of Appeal is of the view, where between 50 to 300 grammes of ketamine is trafficked, a starting point of between 6 to 9 years’ imprisonment is appropriate.

15.  Here, for a quantity of 73.3 grammes, a starting point of just over 6 years would be appropriate.

16.  Defendant, please stand up.

17.  I have considered the defendant’s plea, the facts of the case, the defendant’s role as a courier, and mitigation put forward.  The defendant is young and a young mother of a very young child, but she cannot be so naïve, bearing in mind she has two previous convictions for trafficking dangerous drugs.  The defendant must know the seriousness of this offence and yet took the risk again. 

18.  The defendant must take responsibility for her actions.  The defendant needs to grow up.  She needs to learn a trade or get educated and be a mother to her child.  It is not too late.

19.  Having considered all those factors, I take a starting point of 5 years and 6 months. 

20.  The defendant has pleaded guilty and is entitled to a discount of one-third for her plea.

21.  After that discount is applied, for this offence the defendant is sentenced to 3 years and 8 months’ imprisonment.