CRIMINAL CASE NO. 273 OF 2010
COURT: This defendant was originally charged with trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
It was alleged that on 21 November 2008 at the 14th Floor, Hong Kong Mansion, No. 1 Yee Wo Street in Wan Chai, she trafficked in 46.13 grammes of a crystalline solid containing 45.76 grammes of methamphetamine hydrochloride, 888 squares of blotter paper weighing a total of 10.37 grammes containing 0.0209 grammes of lysergic acid diethylamine, which is commonly known as “LSD”, and 37 tablets containing a total of 0.25 grammes of nimetazepam.
She was originally convicted after trial of this offence. However, on 18 August of 2010, the Court of Appeal allowed her appeal against conviction and set aside her sentence and ordered that there be a retrial. In so doing, they observed that any subsequent trial could possibly have as an alternative count one of a tenant permitting premises to be used for the storage of dangerous drugs, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance. They did this in the light of the fact that it became apparent that the dangerous drugs which were stored on these premises which were the subject of the original charge of trafficking were, in fact, the property of her husband, who was a drug addict and a heavy user in particular of the dangerous drug “Ice”.
When this matter first came before me at a pre-trial review, it was indicated that the prosecution were minded to include that alternative charge on the indictment. I indicated then that I thought that to be a sensible course. The defendant herself, through her counsel, indicated that she was prepared to plead guilty to that count.
In the fullness of time, the prosecution have accepted that a plea of guilty to the alternative section 37 count is appropriate in satisfaction of the indictment, and today the defendant has pleaded guilty to that charge, and a Summary of Facts in support of it has been admitted by her.
For the purposes of sentencing, it is unnecessary for me to set out in any detail the Summary of Facts. What is apparent from the Summary of Facts is that the defendant had been the tenant of these premises for a considerable period of time. Her second husband, one Liu Shuang, who is 10 years her junior, came to live with her there from mainland China. He is, quite obviously, a drug addict and a person who consumes considerable quantities of the drug “Ice”. This is reflected in the Summary of Facts.
It is also clear beyond peradventure that this defendant permitted him to use her premises for the consumption of dangerous drugs.
The authorities for sentencing in this area are extremely limited. There are some observations which would suggest that an appropriate starting point for sentence for a person who commits this offence should be similar to that for a person charged with the offence of keeping a divan. There is support for the proposition that on occasions, a starting point for sentence for that offence of 2 years has been adopted.
The circumstances of this defendant, however, are, to my mind, unique. Whilst she has a previous conviction for the use of dangerous drugs, nevertheless it is apparent that she is not herself embroiled in consumption and in the trade of trafficking in dangerous drugs.
These drugs were on the premises by reason of her relationship with her husband. The Summary of Facts makes it abundantly clear that it was for that reason and that reason alone that the drugs were on the premises. They were his, not hers.
She has been in custody since the date of her conviction in the first trial, namely 25 August 2009.
I am satisfied that in the circumstances it is unnecessary to obtain reports, nor am I required to do so by the Dangerous Drugs Ordinance.
Given the period of her incarceration to date, it is, to my mind, essential that a sentence be imposed that will permit her immediate release from imprisonment. It is not possible, therefore, to calculate from a starting point the precise sentence to be imposed.
However, taking into account all of the matters in her favour, including her plea of guilty to the amended indictment, I am satisfied that the appropriate sentence to impose is a term of imprisonment such as will allow for her immediate release, and that is the sentence that I impose.