COURT: The defendant pleaded guilty to two charges. In Charge 1, she admitted trafficking in a mixture containing 163 grammes of heroin hydrochloride. In Charge 2, she admitted possessing a mixture containing 1.98 grammes of heroin hydrochloride.
The gist of the Summary of Facts which she admitted is as follows. At about 12.42 pm on 3 November 2022, the police intercepted the defendant when she was approaching the flat in question. They found the heroin in Charge 1 in her handbag.
Upon arrest and under caution, she stated and I quote from the Summary of Facts which she admitted that, “She was in need of money, and the white powder was kept by her for Ah Shek and she would later give them to others”.
The police then used the key that the defendant was holding to enter the flat. On the table, they found the heroin in Charge 2 and some packing paraphernalia. They also found $11,000 cash from the bed. Upon arrest and caution, the defendant claimed that the heroin in Charge 2 was for her own consumption.
Subsequently, in a video recorded interview taken under caution, the defendant stated the following:
(a) that she met Ah Shek in a park in Sham Shui Po and as she had no money, she agreed for the first time to deliver the heroin in Charge 1 for Ah Shek with a view to receiving $700 upon delivery of the heroin;
(b) that she was jobless, but she used to work as a “short time warehouse staff” with a daily wage of between $400 and $600;
(c) that she would consume the heroin in Charge 2 “in the way like she was taking cigarettes”;
(d) that she had been taking white powder for 20 to 30 years and consumed about 0.5 grammes daily;
(e) that she was the registered tenant and only occupant of the flat; and
(f) that the $11,000 were her savings from her previous work in the warehouse.
The estimated retail value of all 164.98 grammes of heroin in the case was $158,869.
The defendant has 14 previous convictions from 10 cases. There was one conviction of trafficking in dangerous drug in 2010 for which she was sentenced to 16 months imprisonment, and nine of possession of dangerous drug with the most recent three being in 2008 and 2018, for which she was sentenced to 20 months’ imprisonment and DATC respectively. She was last discharged in July 2021, that is 15 months before the present offences.
The defendant is now 52 years old and was 50 at the time of offence. She was educated up to Secondary 5 level. She is a divorcee. She has a son, aged 21 years, who has psychiatric problems and is living with the defendant’s mother. Because of his psychiatric problems, the defendant’s mother who takes care of him has developed depression. The defendant’s father is suffering from prostate cancer. The defendant has three younger sisters.
Mr So, counsel for the defendant, submitted five letters written by the defendant’s mother, her son, and all of her younger sisters. In gist, they all asserted that the defendant used to be a pure, kind, and caring person, and she only became drug addicted after mixing with dubious characters. It was submitted that the defendant was remorseful and prepared to turn over a new leaf, especially now that her estranged son had resumed contact with her. They all pleaded for leniency for the defendant. The defendant has also written a letter to express her remorse and promised to turn over a new leaf.
In terms of sentence, Mr So accepted that the starting point for sentence for Charge 1 is 11 years and 5 days and he urged for a starting point of 12 months for Charge 2. He submitted that the latent risk in Charge 2 is very low. He asked that the sentences for the two charges to be served concurrently.
With respect to Charge 1, I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] HKCA 150. According to R v Lau Tak Ming and Others [1990] 2 HKLRD 370, trafficking in between 50 and 200 grammes of heroin should attract a starting point for sentence of 8 to 12 years of imprisonment. This band applies to defendants who are couriers or storekeepers. There is no evidence that the defendant’s role was anything above a courier or storekeeper. There is 163 grammes of heroin hydrochloride in Charge 1. On a strict arithmetical basis the starting point for the quantity in this case should be one of 11 years and 5 days. I adopt 11 years of imprisonment as the starting point for sentence.
The defendant has one previous conviction of trafficking in dangerous drug in 2010. This is an aggravating factor, and therefore I add 6 months to the starting point.
The defendant pleaded guilty at the earliest opportunity. She is entitled to a full one-third discount, thus bringing down the sentence to 7 years and 8 months’ imprisonment. I have considered the defendant’s circumstances, but there is nothing in them that amounts to a mitigating factor.
I now turn to Charge 2. According to the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the starting point for sentence for possession of dangerous drugs is usually between 12 and 18 months’ imprisonment. There is 1.98 grammes of heroin in Charge 2. I adopt 12 months’ imprisonment as the starting point.
The defendant has nine previous similar convictions. This is an aggravating factor and for which the starting point is increased by 3 months.
Given the small quantity, her previous convictions of simple possession, and the positive result of her urine test upon her admission to the Correctional Services Department’s institution, I am prepared to accept that the latent risk that the heroin in Charge 2 will be redistributed by the defendant is very low, and therefore I will not increase the sentence for that.
The defendant pleaded guilty at the earliest opportunity. She is entitled to a full one-third discount, thus bringing down the sentence to 10 months’ imprisonment. There is no other mitigating factor.
Having considered the totality principle, I order that 1 month of the sentence for Charge 2 to run consecutively to that for Charge 1. The defendant is therefore sentenced to 7 years and 9 months’ imprisonment.