HKSAR v. YEUNG HOI TING

DCCC646/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 646 OF 2011

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Reasons for Sentence

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1.  The defendant has been convicted of two offences: firstly, trafficking in a dangerous drug, and secondly, importing prohibited articles.

2.  In respect of the 1st charge, I convicted her in relation to 12.85 grammes of a powder containing 10.68 grammes of ketamine.

3.  The 2nd charge related to 112 tablets containing tramadol.

4.  The basis upon which I convicted the defendant of those offences can be found in my reasons for judgment.  They were delivered orally in this case, although I will rehearse the fact, for the purpose of sentencing, that the conviction of the defendant on the 1st charge related to her importation of the drug.

5.  The evidence that was largely uncontested was that the defendant had been stopped at the Customs Arrival Hall in Lo Wu, and the drug had been found - that is the ketamine drug - contained in her handbag. There was a total of 10.68 grammes of ketamine in the mixture found in the bag.

6.  The defendant’s explanation that was offered at the time was that the drugs had been bought for her own consumption at a price of RMB600 and that the actual value of the drug in Hong Kong would be $1,439.

7.  The defendant’s defence had been that she was not aware of the presence of the drug in her bag, and I have rejected that. Nevertheless, in terms of the conduct of the trial, very little of the prosecution case was challenged in any way.

8.  The defendant is of clear record.  She is aged 30 years old and has come here from Mainland China.  She is married to a 49-year-old man who is a night-shift taxi driver in Hong Kong and she has a son aged 7 who is in Primary 2.

9.  Following conviction of the defendant, I obtained a background report on her.

10.  She had been convicted on the basis she imported the drug, so the question of the use of those drugs was still somewhat at large, and also, it was clear from her evidence that she is the mother of a young child, and certain special considerations in sentencing must attach to that fact.

11.  The background report on the defendant is helpful.  Prior to her incarceration for this offence, she lived in a self-built stone hut in Sheung Shui.  She had been living in Shenzhen after she left school.  She married in 2004.  Her husband had worked in Sheung Shui some time.  The defendant herself was born in Hunan Province in China.  Her mother was killed in a car accident two to three years ago, and that was, in fact, prefigured in her evidence.

12.  As I said, she married in 2004.  Her husband was working as a truck driver travelling between Hong Kong and Shenzhen.  They moved to Hong Kong, where her husband became a taxi driver, and are currently living in Hong Kong.

13.  The husband was a night-shift driver and takes care of the son during the day, and the defendant’s husband says that he was not aware of any vice habits in his wife.  She was a responsible wife and caring mother.

14.  The defendant repeated that she was not a drug addict and she admitted that she was wrong.

15.  There is not much said in the report about the care of the child, but one assumes that the father is in a position to look after the child, but it does bring out the salient factors, which appear to be:  the defendant is not addicted to any drug and that she is a young mother.

16.  Obviously, the sentence on the 1st charge is the one that demands the most consideration because it is the most lengthy of the sentences I could impose.

17.  It is quite clear that the tariff sentence for trafficking in that quantity of ketamine lies in the range of

18.  When a person is convicted, as this defendant was, on the basis she imported the drug, that cannot be assumed and it would appear that the court must resolve whether the drugs that were imported were for self-consumption or for distribution at some point.

19.  In this case, the prosecution always and at all times prefigured the basis of the conviction was the importation of the drug.

20.  The other evidence would be:

(1) the defendant’s claim the drugs were for her self-consumption;

(2) the price of the drug, which in Hong Kong would be $1,400 (and on the defendant’s evidence, RMB600 in the Mainland);

(3) the packaging of the drug, which at that time, does not suggest distribution; and finally,

(4) the defendant’s own demand for the drug.

21.  The evidence in the case may have some suggestion that the drug may have been subject to distribution at some point, but it does not reach the level of proof which would allow me to assume that for the burden of sentencing in a criminal case.

22.  So, the prosecution have proved importation beyond reasonable doubt and, as far as the other evidence is concerned, it seems I must sentence the defendant on the basis the drugs were for self-consumption, that being the only acceptable evidential basis on the facts I have before me.

23.  The Hong Kong authorities on that point, the most recent one is Chow Kam Lung, a case in 2010.  That notes that the definition of “trafficking” includes the importing into Hong Kong of a drug, and they say,

“Importing a dangerous drug, therefore, whether for the purpose of later dealing with the drug or for personal consumption constitutes the offence of trafficking.”

24.  The English courts have rejected the contention that importation for personal consumption was to be treated in substance as an offence of mere possession.  Importing is a distinct offence from possessing. Penalties are different and it is not right to say it must be treated simply as a case of possession.

25.  In the case of Chan Mung Lung, Penlington JA said that whether a drug is imported for personal consumption, in part or in whole, is very much a factor to be taken into account in mitigation.

26.  In the case of Chow Kam Lung, the judge himself, the sentencing judge, had not resolved the issue of the purpose of the importation.  The Court of Appeal sentenced on the basis of the factual version must favourable to the applicant, which was self-consumption of the drug.

27.  In that case, the defendant had pleaded guilty and there had been a 3-year sentence after reduction for plea of guilty.  That base sentence was reduced by a further 9 months.

28.  It was said this will

“reflect the strong mitigating factor that the drug was solely for the applicant’s own use, whilst at the same time reflecting the intention of legislature that importation of a dangerous drug, whatever the purpose, constitutes the offence of trafficking”.

29.  I believe that shows the kind of level of reduction for sentencing the defendant can expect for that mitigating factor.

30.  The second factor I should consider in sentencing the defendant is the fact that she is a young mother.  She is 30 years old and her son is 7, still a very young age, and an important age for a child, and still at an age where the child is very much dependent on their mother.

31.  This is a factor that I can take into account in sentencing.  The effect of sentencing of a parent upon the child of a family can be advanced as mitigation.  The imprisonment of a parent can be seen in some ways to infringe on the right to family life of a child, something guaranteed by our own Basic Law.

32.  In this case of Secretary for Justice v Chau Wan Fung, it was said the court is unlikely to be influenced by this factor, but in HKSAR v Chan Kin Chung & Another in 2002, Stock JA said there are exceptional cases in which a sentence may take into account and give ameliorating effect to the fact that the sentence will deprive children of all parental care until the consequence of that deprivation is beyond doubt.

33.  Now, this child will not be deprived of all parental care, but the sentence of imprisonment will deny him the important parental care of his mother, and thus should be kept to as low a level as possible, given the need to reflect the deterrent effect of sentencing for drug trafficking.

34.  I propose to resolve these issues as follows.

35.  I will adopt what I consider to be the usual starting point for trafficking of this quantity of ketamine on the 1st charge: that is, 48 months’ imprisonment, 4 years’ imprisonment.

36.  I shall reduce this sentence by 9 months’ imprisonment to reflect the fact that the conviction was on the basis that the defendant imported the drugs and that those drugs would have been for her self-consumption.

37.  I will further reduce the sentence by another 9 months to reflect the disruption to her own and her son’s family life.

38.  This means that the total reduction from the head sentence of 48 months will be one of 18 months’ reduction.

39.  This leaves a final total of 30 months’ imprisonment on the 1st charge.

40.  On the 2nd charge, I shall take a starting point of 12 days’ imprisonment.

41.  This 12 days’ imprisonment is to run concurrently to the 1st charge, so there will be a total overall sentence of 30 months’ imprisonment.