HKSAR v. LAW HOI KA CONNE AND ANOTHER

 DCCC1211/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1211 OF 2009

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to one charge of trafficking in a dangerous drug and one charge of possession of a dangerous drug. The 2nd defendant has pleaded guilty to one charge of trafficking in a dangerous drug. They have admitted the facts and I have convicted them of those offences.

2.  Now, the facts establish that the discovery of these offences resulted from police patrol on 4 September 2009 at about 6.15 in the evening. At that time the 1st defendant was intercepted and searched, and nothing was found on her but a key was used to open the gate and door of the premises, and a search took place inside those premises.

3.  Now, the search found a quantity of drugs which were produced as Exhibits P2 through to 6, and the paraphernalia that is generally used for the packaging and trafficking of dangerous drugs such as scales, plastic sheets, scissors and such like.

4.  The defendant admitted the drugs found in Exhibits 2-6 were heroin and midazolam tablets, some were to be sold and some were for her own consumption.

5.  Now, later that evening the 2nd defendant entered the premises and a packet of heroin which is Exhibit 8 was found in his left trouser pocket. The defendant said that he was helping somebody called “Mo Nga Chai” to convey the heroin.

6.  The drugs found in Exhibits 2 through to 6 are particularized in the 1st charge against the 1st defendant, and that is a total of 1.70 grammes of a mixture containing 1.21 grammes of heroin hydrochloride and 140 tablets containing 1.91 grammes of midazolam.

7.  Later in an interview, the 1st defendant admitted that those drugs were hers. Anything left over from selling were used for her own consumption. The paraphernalia found was for packing of dangerous drugs. The 2nd defendant also admitted that he was helping or working for “Mo Nga Chai” to traffic the drugs from Sheung Shui MTR Station for $1,000. Also, he was the 1st defendant’s boyfriend.

8.  As far as Exhibit 8 is concerned, the 2nd defendant was found to be trafficking in 27.4l grammes of a mixture containing 22.09 grammes of heroin hydrochloride.

9.  As far as the 3rd charge is concerned, the 1st defendant was later remanded to Tai Lam Centre for Women and she was found to have excreted two pellets in the isolation cell. They were in fact found to be a small quantity of midazolam in them. And she said that she actually swallowed some drugs when she was intercepted by the police on 4 September because she thought she would be granted bail. She said that those drugs had been intended for her own consumption.

10.  Both defendants have admitted the facts as against them and I have convicted them on the basis of those admissions.

11.  They both also admitted that they had criminal records and also admitted the terms of those criminal records. The 1st defendant has four previous convictions involving drugs. Most recently, she was sentenced to a drug addiction treatment centre on 9 October this year. The 2nd defendant has three convictions, one of which is possession of a dangerous drug in 2003.

12.  The 1st defendant is 30 years old. She is the 2nd defendant’s girlfriend. She obviously is unemployed. The 2nd defendant is 43 years old, had been a transportation worker and is by his own admission a drug addict.

13.  I heard mitigation advanced on behalf of the defendants. The 1st defendant is 30 years old and single. She was living with her mother and the 2nd defendant in a flat. She describes herself as a housewife. She is taking dangerous drugs, she says, for about 16 years, spending $200 on drugs every day. And she takes the midazolam to help her sleep. The 2nd defendant will give her money for housekeeping and also she used that to buy drugs.

14.  As far as the 2nd defendant is concerned, in mitigation, he was 43 years old and single. He has parents over 60 years of age and he has written a letter to me which shows that he is very conscious about the fact that this would cause them problems although he does have siblings. He has worked a clerk for almost 10 years. Recently, he was working as a truck driver, earning $10,000 a month. He is also a drug addict and has been taking drugs for six to seven years. He says he takes some midazolam to help him sleep. But he found that he was short of cash due to the nature of his addiction. No doubt that led him to earn extra money from trafficking.

15.  Now, as far as sentencing the defendants are concerned, there are clear guidelines for the possession and trafficking in heroin and these can be found in the case of Lau Tak Ming.

16.  Now, I will turn firstly to the 1st defendant. There are two charges that I have to be concerned with here. She has trafficked in what is in fact a small quantity of heroin and also midazolam. And Lau Tak Ming says that for trafficking up to 10 grammes of the narcotic of heroin, the starting point of 2 to 5 years’ imprisonment is appropriate. Now, as far as Charge 1 is concerned, I will take the bottom point of the guideline, 2 years’ imprisonment, to take that a starting point for Charge 1. That sentence will be reduced to 16 months’ imprisonment having regard to her plea of guilty.

17.  She is also charged in respect of possession of a small quantity of midazolam which was also in her possession on 4 September. Now I approach that by taking a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for her plea of guilty. But given the fact that she was in possession of it on the same day as the 1st charge, I order that that sentence be served concurrently with the 1st charge. So the overall total sentence will be one of 16 months’ imprisonment for the 1st defendant.

18.  Now, the 2nd defendant’s sentencing is more straightforward. He is in possession of 22.09 grammes of the narcotic. The defendant has made frank admission that he was in possession of that for the purpose of trafficking, he was moving it around. And the defendant has clearly faced up to his responsibilities. Nevertheless, the sentences for these offences are substantial. And between 10 grammes to 50 grammes of the narcotic, the starting point is between 5 to 8 years’ imprisonment.

19.  As far as this defendant is concerned, I shall take a starting point of 6 years’ imprisonment and reduce that to 4 years’ imprisonment for his plea of guilty. So the sentence will be 4 years’ imprisonment for the 2nd defendant.