HKSAR v. LI HOI YAN, WINKY

DCCC801/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 801 OF 2010

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Reasons for Sentence

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1.  The defendant is convicted upon her own guilty plea of on one charge of possession of a dangerous drug and one charge of possession of apparatus fit and intended for the inhalation of the dangerous drug.

2.  The particulars of offence for the 1st charge are, Li Hoi-yan, Winky, on 18 May 2010, at No. 8 Staircase, 3rd Floor, Langham Place, No. 8 Argyle Street, Mongkok, Kowloon, in Hong Kong, had in her possession a dangerous drug, namely 13.58 grammes of a powder containing 10.78 grammes of ketamine.

3.  The particulars of offence of the 2nd charge are, Li Hoi-yan, Winky, on 18 May 2010, at No. 8 Staircase, 3rd Floor, Langham Place, No. 8 Argyle Street, Mongkok, Kowloon, in Hong Kong, had in her possession one inhaling device, namely one segment of plastic straw containing 0.01 gramme of a powder containing ketamine, fit and intended for the inhalation of a dangerous drug, namely ketamine.

4.  The facts admitted by defendant reveal that on 18 May 2010, Customs Officer 9804, PW1, and other Customs Officers performed an anti-dangerous drugs duty in Mongkok. At about 2045, the Customs Officers saw the defendant acting suspiciously outside Shop No. L3-33, 3rd Floor, Langham Place, No. 8 Argyle Street, Mongkok, Kowloon. They intercepted the defendant and revealed identities. PW1 took the defendant to No. 8 Staircase near the shop for a search. The following were found in the left side of the defendant’s bra:-

1) a plastic bag containing a powder, E1;

2) a plastic bag containing a powder, E2;

3) a paper packet containing a powder, E3;

4) a segment of plastic straw containing a powder, E4.

5.  PW1 suspected that they were dangerous drugs and arrested the defendant. Under caution, the defendant admitted that E1 to E4 belonged to her and the powders were ketamine. The defendant asked PW1 to give her a chance.

6.  Government Chemist confirmed that E1 contained 13.40 grammes of a powder containing 10.68 grammes of ketamine. E2 contained 0.04 gramme of a powder containing ketamine. E3 contained 0.13 gramme of a powder containing 0.10 gramme of ketamine. E4 contained 0.01 gramme of a powder containing ketamine.

7.  In the subsequent recorded interview, the defendant further admitted that the defendant purchased E1 from an unknown male for HK$1,000. The defendant paid the unknown male HK$500 and owed him another $500. E1 was for her own consumption for about one month. The defendant purchased E1 immediately before the defendant was arrested by PW1. E2 contained ketamine remaining from the defendant’s past consumption. The defendant used E3 to make the ketamine powder finer for consumption. The defendant used E4 to inhale ketamine.

8.  The defendant has two previous convictions on possession of a dangerous drug resulting from the same case in 2006. She was fined $1,000 and $2,000 respectively. According to the defendant’s antecedent statement, she was born in October 1982. At the time of the offence, she was 27 years old. She received education up to Form 5 level. Before her arrest, she worked as a saleslady.

9.  In mitigation on 27 September 2010, I was informed that the defendant was still in employment and that she had been doing volunteer work for the elderly for the past two years. On behalf of the defendant, Mr Lee also submitted that the defendant was willing to assist the authorities. On that occasion I adjourned the case for two weeks to obtain a DATC report and to see progress of defendant’s assistance to the authorities. At the hearing today I was informed by the prosecution that the assistance given by the defendant did not lead to any fruitful result and the investigation authority was not going to take any further action arising from the defendant’s so-called assistance. The DATC report concludes that defendant is suitable for admission to a DATC and there is a place available for her.

10.  At today’s hearing, Mr Lee on behalf of defendant submitted a letter written by the defendant saying that she was remorseful. Mr Lee asked me to impose a suspended sentence. Mr Lee submitted the Reasons for Sentence in DCCC1115 of 2008 but I do not think DCCC1115 of 2008 bears any relevance in support of Mr Lee’s submission that a suspended sentence is appropriate.

11.  In HKSAR v Lin Shing Chun, Michael HCMA 308/2007, the defendant pleaded guilty to one charge of possession of 4.87 grammes of ketamine. The appeal against the sentence of 6 months’ imprisonment was dismissed.

12.  In HKSAR v Kong Chun-wai & Another, DCCC1400/2009, the defendant who had a clear record was convicted on his own guilty plea of two charges, the first being possession of 11.50 grammes of ketamine. For that charge, the District Judge adopted a starting point of 18 months’ imprisonment and reduced it to 12 months to reflect his guilty plea.

13.  Mr Lee urged me to impose a suspended sentence on the defendant. However, I do not think there are any exceptional circumstances justifying a suspended sentence in this case.

14.  Despite the DATC report, I consider possession of 10.78 grammes of ketamine a serious case justifying custodial sentence. For the 1st charge I adopt a starting point of 15 months’ imprisonment. For the 2nd charge, I adopt a starting point of 6 months. In light of the defendant’s guilty plea, I will give her the usual one-third discount. As a result, the sentence for the 1st charge is 10 months’ imprisonment and the sentence for the 2nd charge is 4 months’ imprisonment.

15.  Because the two offences were committed at the same time, I will impose a concurrent sentence. The resulting sentence is 10 months’ imprisonment.