HKSAR v. HO CHING MAN, FAYE

DCCC875/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 875 of 2011

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Reasons for Sentence

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1.  Defendant has pleaded guilty today to one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The drugs a mixture containing 23.86 grammes of heroin hydrochloride and 2.96 grammes of ‘Ice’. The purity total for both drugs add up to 26.82 grammes.

2.  The facts of this case are very straightforward.  On 1 June police officers on patrol noticed the defendant looking furtive and nervous.  They stopped and searched the defendant’s person and belongings.  In a paper bag the police officer found this quantity of ‘Ice’ and heroin.  Under caution defendant told the police officers that she bought this quantity for her own consumption.  There were no suspicious items found at her home when a home search was conducted the same evening.  This would support her mitigation that she was a drug mule and not any more involved than that.  At the police station later that evening in a video record of interview she made a full confession, admitting that she acted as a courier.  A friend who knew she was in need of money tempted her to traffic dangerous drugs for a financial reward.  Today I have been told that that friend was actually her drug supplier. 

3.  Defence mitigate that this was the first time she trafficked and carried dangerous drugs for the purpose of trafficking, hence her nervousness which attracted the police attention. 

4.  The defendant is not a woman of clear record. She has several previous convictions that relate mainly to theft offences.  She does have one conviction relating to drugs, a possession of dangerous drugs conviction in 1998.  It is agreed that the estimated retail value of the heroin is $23,000-odd and the ‘Ice’ $2,100-odd. 

5.  The defendant’s best mitigation today is her plea of guilty, she gave an indication of this plea earlier last month.  This has saved time and shown her remorse.  The defendant herself is only 31, single but been on drugs for the past 10-odd years.  She lives with her family and has been supporting herself as a waitress.  She has a younger sister in court today to show her support.  The defendant has been in custody since April and is convinced she no longer has a drug addiction.  She promises herself and her family that she will not take up the addiction again and turn over a new leaf.

6.  Where trafficking dangerous drugs is concerned there are clear guidelines as to sentence.  In the authority of R v Lau Tak Ming [1990] 2 HKLR 370 where a defendant traffics heroin between 10 to 50 grammes, an appropriate sentence would be between 5 to 8 years.  In this case a quantity of 23.86 grammes of heroin would attract about a 6 year term of imprisonment.  According to the authority of The Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125, a trafficker of ‘Ice’ up to 10 grammes would face a sentence between 3 to 7 years.  In this case the purity of ‘Ice’ is 2.96 which could attract about a 3 year starting point. 

7.  There are two types of drugs in this case, what can be described as a cocktail of drugs.  Any sentence must reflect this fact. After hearing mitigation I will take the combined approach to sentencing here. What that means is I will add the quantity, the lesser quantity of ‘Ice’ to the higher quantity of heroin and sentence on the basis that the total amount is heroin; therefore, I am to consider 26.82 grammes of heroin.  If one were to take a strict mathematical approach to the appropriate bracket in Lau Tak Ming, the starting point should be 6 years and 4 months. 

8.  Defendant, please stand up.  I will take into account in coming to my starting point all the mitigation put forward, your background, of course the quantity of drugs, the guidelines of the authority, your co-operation with the police, the fact you have previous convictions but none for trafficking dangerous drugs and, lastly, your plea today which is an indication of remorse. 

9.  Accordingly I will take a lower starting point of 5 years and 6 months.  You have pleaded guilty and are entitled to a discount of one-third which would be 22 months.  That would eave an ultimate sentence of 3 years and 8 months.  Do you understand that sentence?

DEFENDANT: Understand.