COURT: The defendant, Leung Ka-yan, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The facts that she had admitted. The Admitted Facts disclosed that the police broke into a room in Sai Yeung Choi Street North after giving verbal warnings because they were executing a search warrant. The defendant was found inside with another woman whom the defendant claimed to be her girlfriend.
On the bed, the police found two plastic bags containing dangerous drugs. The first one contained 6.8 grammes of crystalline solid containing 6.7 grammes of methamphetamine hydrochloride, known as ‘Ice’. The second one, 3.14 grammes of a crystalline solid containing 3.05 grammes of ‘Ice’.
So both women were arrested for drug trafficking. Under caution, the defendant said she was given $1,000 to place “Pork” at her place by someone called Ah Fung or Fung. She was desperate and needed money to pay the rental.
The police searched the room and found the following: A cigarette box containing four plastic bags containing a total of 25.4 grammes of a crystalline solid containing 24.56 grammes of ‘Ice’; a red packet containing a large number of empty resealable plastic bags; an electronic scale; in the kitchen, a bag containing 13.5 grammes of a crystalline solid containing 13.1 grammes of ‘Ice’ and two bags containing a total of 2.36 grammes of a crystalline solid containing 2.3 grammes of ‘Ice’.
Both women were further arrested for drug trafficking. Under caution, the defendant said the dangerous drug was given to her by Ah Fung for safekeeping and that her girlfriend had nothing to do with it, with the dangerous drug.
The defendant then attended a video-recorded interview later. Under caution she said, among other things, she and her girlfriend reside at the said room and the rental was $5,000. She met Ah Fung in a game centre and she mentioned to him she needed money. Ah Fung asked her to keep something at her place for him for a reward of $1,000 and she was given a bag containing five to six bags of ‘Ice’, an electronic scale and an extendable baton. She did not know how much ‘Ice’ there was and she did not repack the ‘Ice’, just hid them at various locations at home as she was afraid and she had been arrested 10 years ago.
Ah Fung did not come to collect the things after a few days. She was unable to locate Ah Fung. She thought about throwing away the ‘Ice’. She did not know why she was given an electronic scale. She had not received the reward of $1,000 and she was not a CSSA recipient. Urine test conducted after the defendant’s admission to the CSD showed it to be positive to amphetamine.
The retail value of ‘Ice’ seized in this case was about HK$30,000.
Background and Mitigation
According to the antecedent statement, the defendant was born in 1988 in Hong Kong so she is now 33. She studied up to Form 5. At the time of the offence, the defendant worked in a warehouse. The defendant is not a person with a clear record. She has four convictions of common assault prior to being convicted of possession of instrument fit for the consumption of dangerous drugs, and in 2010 she was convicted of trafficking in a dangerous drug and was sentenced to 6 years and 8 months’ imprisonment.
The last offence was signing a false notice of marriage with intent to procure a marriage and she was sentenced to 3 months’ imprisonment and the defendant claimed not to be a drug addict in the statement.
In mitigation, Mr Jacky Jim, counsel for the defendant, informed the Court that the defendant had been consuming dangerous drugs at the material time which was supported by the urine test result.
With reference to the sentencing guidelines set down in the case of Tam Yi Chun, Mr Jim submitted that the starting point is around 115.77 months. Mr Jim asked this Court to give the defendant the full one-third discount.
The defendant had written to this Court in mitigation asking for leniency. The defendant said she came from a single-parent family when her father died when she was 11. She turned wild when she was rebellious and disobeyed her mother’s advice.
When she was serving the lengthy sentence for trafficking in a dangerous drug, she studied to equip herself. She was able to find a job in a warehouse after her release. She was living in a public housing which was in her mother’s name but her mother was living in an old people’s home. The Housing Authority found out about it so she and her girlfriend were kicked out and she and her girlfriend had to find alternative accommodation and she used up all her savings for the move. She was in need of money so she agreed to store the dangerous drugs for this Ah Fung. When Ah Fung did not come to collect the dangerous drugs, she thought of disposing them but was afraid she would not have money to compensate Ah Fung when he came for them so she kept the dangerous drug for two days and then she was arrested.
The defendant said her mother was 73 years of age and she could only have telephone conversation with the mother once every two weeks and the defendant promised to further her studies and not to commit any offence again.
Prior to the hearing, the defendant wrote again to this Court to supplement her earlier letter. She informed the Court of her mother contracting COVID while she was at a home for the aged and sadly passed away on her 74th birthday. The defendant lamented the fact that she was not by her mother’s side when the latter was sick and also failed to see her for the last time. The defendant said she was determined to reform and will continue to study in gaol.
My Consideration for the Sentence
Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drug is involved. A person convicted on indictment of this offence is liable to a fine of $5 million and to imprisonment for life.
In the case of Tam Yi Chun which was quoted by your counsel, by defendant’s counsel, the Court of Appeal set down guidelines for the trafficking of ‘Ice’. The ‘Ice’ involved in this case was 49.71 grammes which falls under the bracket of between 10 to 70 grammes with a starting point between 7 to 11 years.
The defendant acted as a custodian of the dangerous drug for another person. Though there was an electronic scale and many empty plastic bags which could be used for packing or repacking dangerous drugs, the presence is still consistent with the defendant’s claim that she was asked to keep these items for Ah Fung, so I will therefore sentence the defendant on that basis.
The amount of dangerous drug involved was about 50 grammes, 49.71, so almost 50 grammes. On a mathematical calculation in accordance with Tam Yi Chun, a starting point for a person of clear record after trial would be one of 9 years and 8 months. And there is an aggravating factor here in that the defendant had already been in gaol for trafficking in a dangerous drug before. The defendant had not learned her lesson and committed the same offence again. I will enhance this starting point by 4 months to bring the starting point to one of 10 years.
The defendant pleaded guilty at the earliest available opportunity, because that was at the committal stage and she is entitled to a full one-third discount. With the one-third discount, the sentence is one of 6 years and 8 months’ imprisonment.
So I appreciate the defendant’s pain in not being able to be by the side of her aged and sick mother and failed to see her before she died and I am glad to learn the defendant is determined to reform herself and enrich herself while in custody. However, the defendant’s situation does not amount to humanitarian ground for me to further reduce the sentence. So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 6 years and 8 months’ imprisonment.