HKSAR v. LAW YING KAM

 DCCC1224/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1224 OF 2008

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

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

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

Reasons for Sentence

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

1.  The defendant, Ms Law Ying-kam, pleads guilty before me to a single count of trafficking in dangerous drugs. 

2.  The defendant admits that on the 7th day of November 2008 at the corridor outside Room 1026, Shin Lun House, Fu Shin Estate, Tai Po, New Territories, in Hong Kong, she unlawfully trafficked in dangerous drugs, namely 55.69 grammes of a mixture containing 29 grammes of heroin hydrochloride and 80 tablets containing 1.08 grammes of midazolam.

3.  The facts as admitted by the defendant show that at about 1833 hours on 7 November 2008, the defendant was seen in the corridor of the 10th floor of Shin Lun House, Fu Shin Estate, Tai Po, outside unit number 1026, by the arresting officer, PW1, PC2189. 

4.  PW1 found the conduct of the defendant suspicious and he stopped the defendant at the scene and revealed his police identity.  He also called for the assistance of a female officer.  PW2, WPC5570, attended the scene and at the request of PW1 she searched the defendant’s clothing at the scene. 

5.  In the front right-hand pocket of the pair of black trousers worn by the defendant, PW2 found a transparent resealable plastic bag containing a block of suspected No.4 heroin, a dangerous drug, which was wrapped in a piece of plastic sheeting and also found a transparent resealable plastic bag containing a number of blue coloured pills which were suspected to be midazolam, also a dangerous drug.

6.  The suspected No.4 heroin is P2 and the suspected midazolam is P1.

7.  PW1 then cautioned the defendant and asked her about the suspected heroin.  The defendant answered, “It is white powder”, i.e. heroin.  PW1 also asked the defendant about the blue pills.  The defendant told PW1 they were “Lam Ching Ling”, i.e. midazolam. 

8.  PW1 then arrested the defendant for trafficking in dangerous drugs and verbally cautioned the defendant.  The defendant said under caution, “Ah Sir, I only brought along the white powder and the ‘Lam Ching Ling’ for someone.  Give me a chance.”

9.  The defendant was then taken to the Tai Po Police Station and she was duly processed by the police.

10.  PW1 and PW2 were later examined by PW10, Lam Tze-tsun, Leo, government chemist.  PW10 found P1 to contain 80 tablets containing a total of 1.08 grammes of midazolam and he found P2 to contain one plastic bag containing 55.69 grammes of a mixture containing 29 grammes of heroin hydrochloride. 

11.  PW11, Paul Lewis, Senior Inspector of police of the Intelligence Division of the Hong Kong Police Narcotics Bureau calculated the retail values of the seized dangerous drugs P1 and P2 as: P1, 80 tablets containing midazolam, HK$4,640;  P2, 55.69 grammes of a mixture containing 29 grammes of heroin hydrochloride, $32,968. 

12.  The total value of the drugs seized was calculated by PW11 as being $37,608.

13.  The antecedent statement of the defendant shows that she is now aged 26.  She has a clear record.  She completed Form 4 education at a secondary school in Tai Po.  She worked as a cosmetician with a monthly salary of $10,000 after graduation.  At the time of her arrest, she worked as a part-time cosmetician with a monthly salary of $8,000.  She is single and gave birth to a daughter with her boyfriend.  Her daughter is now 4 years old and is being looked after by her boyfriend’s mother.

14.  Mr Ng in mitigation submits that the defendant pleads guilty to the charge and she has a clear record.  Mr Ng submits that the sentencing guidelines of Lau Tak Ming are applicable to the heroin hydrochloride in the present case.  

15.  This case involved 29 grammes of heroin hydrochloride.  For the 80 tablets of midazolam, Mr Ng asks me to ignore them.  Mr Ng submits that the midazolam tablets are small in quantity.  He relies on the case of Cheung Kwok Fai and also the case of Yip Pik Kwai and submits that the court should adopt a combined approach in sentencing the defendant for the heroin and midazolam in question.

16.  Mr Ng submits that for the purpose of sentencing, the midazolam in question should be regarded as insignificant. 

17.  Given the quantity of heroin hydrochloride in the present case, Mr Ng submits, according to the tariff as set down in Lau Tak Ming, it would bring the defendant within the band of sentence of 5 to 8 years.  He submits 6½  years would be in order but he asks me to adopt a lower starting point in the light of the mitigating factors he is to submit. 

18.  Mr Ng draws my attention to a mitigation letter written by the defendant in which the defendant says she was under the influence of her boyfriend at that time.  Mr Ng also draws my attention to a letter written by the defendant’s mother who out of parental love asks this court to be lenient to the defendant. 

19.  For the 4 years old daughter of the defendant, she is now being taken care of by the mother of the defendant’s former boyfriend.  The defendant had parted with her boyfriend and is remorseful for what she has done.  As an indication of her remorse, she entered a guilty plea to the charge.  Mr Ng asks me to impose a lenient sentence on the defendant. 

20.  In sentencing the defendant, I have considered the drugs in question, the facts of this case and all the matters urged on the defendant’s behalf by Mr Ng.

21.  I agree with Mr Ng that I should adopt the combined approach as endorsed by the court in HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42.  Of the heroin hydrochloride and midazolam in question, no doubt the heroin is the more serious drugs in terms of potency and value.

22.  For sentencing purpose, I would ignore the 80 pills of midazolam.  Applying the tariff as set down in Lau Tak Ming, in my judgment, given the quantity of the heroin in question, a starting point of 6 years and 3 months would have been appropriate and I adopt that as the starting point in this case.

23.  The defendant is entitled to one-third reduction for her clear record and guilty plea.  I thus reduce the starting point to 4 years and 2 months.

24.   Mr Ng asks me to adopt a more lenient sentence for the mitigating factors submitted by him.  No doubt Mr Ng has said everything he can on behalf of the defendant and in fact I have considered all the matters urged on the defendant’s behalf. 

25.  I am sympathetic with the position of the defendant’s daughter.  She is now being taken care of by the mother of the defendant’s former boyfriend.  I am also told that the defendant committed the present offence under the influence of her former boyfriend, and understandably, out of parental love, the defendant’s mother pleads for leniency on the defendant’s behalf.  However, all these matters whether taken individually or together cannot amount to a mitigating factor.

26.  Apart from the guilty plea and the clear record of the defendant, there is no other mitigating factor which can further reduce the sentence.

27.  For the reasons given, I sentence the defendant to 4 years and 2 months’ imprisonment.