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HCCC 411/2019
[2021] HKCFI 766
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 411 OF 2019
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| Before: |
Hon Andrew Chan J |
| Date: |
17 February 2021 at 9.46 am |
| Present: |
Mr Michael T H Tsang, SPP of the Department of Justice, for HKSAR |
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Mr So Kai-ming Selwyn, instructed by Fung & Fung, assigned by DLA, for the accused |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: On 13 May 2018, police officers entered Room 1606 of Hotel East at Kwai Chung, New Territories, after the manager reported to the police suspicious booking made by the defendant. One plastic bag containing 1.19 grammes of methamphetamine hydrochloride was found from the right pocket of the defendant’s dress. On the left pocket of her dress, eight more plastic bags containing 14.28 grammes of methamphetamine hydrochloride and two additional plastic bags containing 1.25 grammes of cocaine were also found.
Apart from dangerous drugs, electronic scale, a number of transparent resealable plastic bags, tubes and straws, ie, paraphernalia for inhaling drugs, were also seized from the premises.
Under caution, the defendant stated that these dangerous drugs were for her own consumption only. The estimated street value of the drugs was found to be just over HK$10,000.
The defendant admitted in the Summary of Facts that she was in possession of all the dangerous drugs for the purpose of trafficking.
The defendant is 37, unemployed and has, amongst others, 11 criminal convictions; six relating to drugs, one in particular trafficking.
Starting point for trafficking in 15.39 grammes of methamphetamine is about 88 months’ imprisonment. Given the amount of cocaine in this case is small and in my view does not contribute significantly to the overall sentence, for the purpose of the present sentencing exercise, I simply put that aside.
However, this is not the defendant’s first trafficking conviction. The defendant was sentenced in 2014 to prison for 6 years for the same offence. She was discharged from prison on March 2018. Two months later, she found herself in the same trade again. For that, I am of the view that an additional 8 months should be added to the overall starting point. So the overall starting point is one of 96 months’ imprisonment.
In the normal course of event, a one-third discount would be given to a defendant who has tendered an early plea to the court. In this case, I do not think a one-third discount should be given.
The defendant initially indicated that she would like to provide a non-prejudicial statement to the police. She did but the non-prejudicial statement turned out to be a useless exercise. The original plea and sentence date was therefore setback for three months, ie, from 19 June 2020 to 30 September 2020.
On 30 September 2020, the defendant sacked her lawyer indicating that she would employ her own lawyer, private lawyer. It was put forward by the defendant that she wished to reverse her plea and that she sacked her lawyer because the lawyer would not follow her instruction. The case was further adjourned so that the defendant could found herself a lawyer of her own choice.
On 19 October 2020, the defendant indicated that instead of finding a private lawyer, she would re-apply for legal aid. The case was further adjourned to 9 November 2020.
On 9 November 2020, Mr So came before this court and asked for time to consider all the papers. No blame has been attributed to Mr So. In fact, I am grateful for his assistance in this matter.
On 1 December 2020, Mr So indicated that there would be an application for the reversal of plea, the case was therefore adjourned again to the 26 January 2021 for argument.
A decision refusing the defendant’s application was given on 9 February 2021. On that day, the defendant after knowing the decision allegedly claimed that she was not well and an ambulance had to call for.
In short, this is not an earliest plea in substance. The defendant had taken various steps, whether intentionally or otherwise, to delay the passing of sentence. Unnecessary time and effort had been deployed by all parties in this case, a waste of tremendous resources. In view of that, I am of the decision that instead of one-third, a quarter discount would be given.
Adopting 96 months as the overall starting point and giving a quarter discount for the defendant’s plea, she is therefore sentenced to 72 months’ imprisonment.
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