HKSAR v. CHAN YAN KEI

DCCC 242/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 242 OF 2016

-----------------

-----------------

------------------------------------------------------

REASONS FOR SENTENCE

------------------------------------------------------

INTRODUCTION

1.  This morning, the defendant appeared before this court to answer a charge of trafficking in a dangerous drug, preferred against her pursuant to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  To that charge she entered a plea of guilty.  Upon her agreement to the facts offered by the prosecution in support of the offence, she was convicted as charged.

FACTS

2.  On the afternoon of 1 January 2016, a team of police officers observed that the defendant acted furtively outside Ground Floor, Sui Fu House, Siu Sai Wan Estate, Siu Sai Wan.  They intercepted her and conducted a body search on her.  In a cosmetic bag inside the defendant’s handbag was found three plastic bags containing what was later determined to be 7.09 grammes of a crystalline solid containing 6.94 grammes of methamphetamine hydrochloride, commonly known as “ice”, estimated to be worth $2,177.  The defendant was arrested; under caution, she admitted she was delivering the items for others because she was pregnant and was in need of money.  In a subsequent video-recorded interview, she provided further details as follows.  She had been recruited by a person called Ah Man – who was aware of the defendant’s financial needs – for delivering the dangerous drugs concerned to a food stall in Wong Tai Sin for a reward of $2,000.  She had opened the bag she obtained from Ah Man and knew therefore there was “ice” in it. 

MITIGATION

3.  The defendant was born in Hong Kong[1] in July 1990 and is currently 25 years old.  She has received education up to Form Three level and has since leaving school worked as a beautician and a waitress.  She has two criminal records for possession of dangerous drugs and was sent, in the end, to a drug addiction treatment centre on both occasions.  At the time of the offence, she was eight-week pregnant and unemployed.  According to her Antecedents Statement, she has been a drug dependant for around ten years, spending $500 a month on “ice”.

4.  In her plea in mitigation, Ms Susanna Lee appearing for the defendant submits that the defendant acted under the influence of bad peers and started abusing dangerous drugs when she was young.  Her baby is expected to arrive on 9 August 2016.   It is the defendant’s wish to look after her baby in prison.  Whilst acknowledging that the defendant has at the time of the offence known about her pregnancy, Ms Lee submits the defendant becoming pregnant has caused her considerable financial strains, and that she has chosen a foolish way to deal with the problem.  The defendant is determined, says Ms Lee, to turn over a new leaf, for her own sake as well as her baby’s.        

CONSIDERATION

5.  Trafficking in a dangerous drug is a most serious offence, carrying as the offence does a statutory maximum sentence of life imprisonment.  The sentencing tariff laid down by the Court of Appeal for trafficking in zero to ten grammes of “ice” is three to seven years’ imprisonment (see AG v Ching Kwok-hung[2], HKSAR v Capitania[3], and HKSAR Tam Yi-chun (No.2) [4]). By this scale, it appears to the court that trafficking in five grammes of “ice” would have called for a starting point in the region of five years.  In the instant case, the defendant has trafficked in almost seven grammes in terms of pure narcotic.  In view of the quantity of “ice” concerned, the proper starting point should be no less than five and a half years’ imprisonment.  The court takes into account the fact that the defendant has, despite her long history of drug abuse, never been convicted of any trafficking offences in the past.  The court would adopt a starting point of five years’ imprisonment in her case.

6.  Financial hardship as a reason for committing a serious offence of trafficking in dangerous drugs is no mitigation at all.  Nor is the fact that the defendant was pregnant at the time of the offence (see R v Chan Lai-ha[5], and HKSAR v Cheng Sau-ping [6]), particularly when she was fully aware of it.  It is of course regrettable to see a new-born baby not being able to breathe the air of freedom to which it is entitled, but that does not provide its mother with a mitigating circumstance that a sentencing court can consider, not “even as an act of mercy” (see R v Kwok Lai-ling[7]).

7.  The defendant is entitled to one-third discount for her guilty plea, resulting therefore in a sentence of three years and four months’ imprisonment.  Nothing in her background would warrant any further reduction in sentence. 

CONCLUSION

8.  For the offence of which she stands convicted, the defendant is sentenced to a term of imprisonment of three years and four months.