HKSAR v. LAW YING KAM

DCCC 207/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 207 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant, Law Ying Kam, appeared before me facing two charges: Charge 1, trafficking in dangerous drugs; and Charge 2, failing to surrender to custody without reasonable cause.

2.  Charge 1 concerned 9.23 grammes of a solid containing 4.86 grammes of cocaine, 0.46 gramme of a crystalline solid containing 0.46 gramme of methamphetamine hydrochloride and 0.17 gramme of a powder containing 0.13 gramme of ketamine.

3.  Charge 2 concerned the defendant’s failure to appear in court on her plea day on 1 April 2014.

4.  The facts admitted by the defendant revealed that on 23 November 2013 at about 18 past 5 in the afternoon, police officers intercepted the defendant when the defendant exited from her residence located at Flat E, 11th Floor, Tower 7, The Coronation, Yau Ma Tei, Kowloon.

5.  Police took the defendant back into the premises.  The defendant’s boyfriend was also present in the premises.  Police searched the premises and found the following in a plastic box at the lower layer of the teapoy at the living room of the premises:-

(1) Three plastic bags containing a total of 9.23 grammes of a solid containing 4.86 grammes of cocaine;

(2) Two plastic bags containing a total of 0.46 gramme of a crystalline solid containing 0.46 gramme of methamphetamine hydrochloride; and

(3) A plastic bag containing 0.17 gramme of a powder containing 0.13 gramme of ketamine.

6.  Police arrested and cautioned the defendant.  Under caution, the defendant admitted that the drugs were for her own consumption, but she would sell some cocaine to her friends.  Later, when police post-recorded the cautioned statement, the defendant revised that the drugs were for her own consumption, but she would supply some cocaine to her friends for their free consumption.

7.  In a video-recorded interview under caution, the defendant admitted:-

(1) She purchased the drugs in question from an unknown person in a bar at Tsim Sha Tsui in the early hours on 23 November 2013 at $2,000. She brought them home and put them into the plastic box.

(2) If the defendant’s friends wanted to have cocaine, she would invite them home and supply the cocaine to them for their free consumption.

8.  The defendant possessed the drugs in question for the purpose of trafficking.

9.  Police estimated that the street value of the drugs in question would be about $10,469.

10.  The defendant failed to appear in court on her plea day on 1 April 2014.  A warrant of arrest was issued as a result.

11.  The defendant was eventually arrested on 14 March 2015.  In her subsequent cautioned interview, she admitted under caution that she did not attend the court for that hearing.

12.  The defendant had one previous conviction for trafficking in dangerous drugs.  She was sentenced to 4 years and 2 months’ imprisonment.

13.  The defendant is now 32 years old.  She was educated up to Secondary 4 level in Hong Kong.  She was a make-up artist at the time of her arrest. 

14.  In mitigation, Mr Mui told me that the defendant is married but separated with her husband.  She has a 10 years old daughter now being cared for by the defendant’s mother.

15.  In mitigation, Mr Mui drew my attention to the case Lau Tak Ming which sets down the tariff for trafficking in heroin which also applies to trafficking in cocaine.  Mr Mui submits that for up to 10 grammes of narcotics, a starting point of 2 to 5 years’ imprisonment is appropriate.

16.  For 4.86 grammes of cocaine, applying the tariff as set down in Lau Tak Ming, Mr Mui submitted a starting point of 3 years’ imprisonment is appropriate.

17.  For the ketamine in question, Mr Mui drew my attention to the case Hii Siew Cheng.  Mr Mui submitted that given that the ketamine in question was 0.13 gramme, applying the tariff as set down in Hii Siew Cheng he suggested a starting point of less than 6 months’ imprisonment.

18.  For the methamphetamine hydrochloride, ie “Ice”, in question, Mr Mui initially asked me to follow the tariff as set down in Hii Siew Cheng.  I pointed out to Mr Mui that Ching Kwok Hung is the authority for trafficking in methamphetamine hydrochloride, ie “Ice”.  Mr Mui corrected himself and accepted a starting point of 3 years’ imprisonment is appropriate. 

19.  For Charge 2, Mr Mui told me that the defendant was admitted to hospital two days before the hearing date on 1 April 2014.  In fact, the defendant was discharged from hospital on 31 March 2014, ie the day before the hearing date.  Mr Mui told me because of the defendant’s illness, she overslept on the day in question and she did not attend court in the morning.  She came to the court in the afternoon.  Mr Mui could not explain why the defendant did not contact the police or the court clerk.

20.  For Charge 1 and 2, Mr Mui submitted that the defendant admitted the charges.  In fact, the defendant made full admission to the police under caution when she was arrested. 

21.  For Charge 1, Mr Mui told me the defendant did not sell the drugs to others for monetary reward.  The defendant’s daughter is now being cared for by the defendant’s mother.

22.  Mr Mui submitted two mitigation letters, one written by the defendant’s sister and one by the defendant herself.

23.  Mr Mui asked me not to attach too much weight to the previous trafficking case as the other case took place some 6 years ago.

24.  Finally, Mr Mui asked me to bear in mind the totality principle and impose a partly consecutive term for Charge 1 and Charge 2.

25.  In sentencing the defendant, I have borne in mind the facts of this case and all the matters urged on me by Mr Mui.

26.  Charge 1 concerned three types of dangerous drugs, ie cocaine, methamphetamine hydrochloride that is “Ice”, and ketamine.  I would adopt the combined approach.

27.  In terms of narcotic potency of the three kinds of drugs in question, methamphetamine hydrochloride is the most potent amongst the three.  Applying the tariff as set down in the case Ching Kwok Hung, a starting point of 3 years’ imprisonment is appropriate.

28.  But of the three types of drugs found by the police, the “Ice” was of minute quantity, ie 0.46 gramme.  I cannot ignore the presence of the cocaine found by the police.  Applying the combined approach, in my judgment, a starting point of 3½ years’ imprisonment is appropriate for the three types of drugs in question.

29.  The defendant is entitled to one-third reduction for her guilty plea.  That would bring her sentence down to 2 years and 4 months’ imprisonment.

30.  The defendant under caution told the police that the drugs were for her self-consumption but she would also supply some cocaine to her friends for their free consumption.

31.  For the self-consumption element, I would accord the defendant an additional discount of 4 months.  That would further bring the defendant’s sentence down to 2 years’ imprisonment.

32.  Mr Mui in mitigation told me that the defendant was not supplying drugs to others for monetary reward.  But, in law, that is not a mitigating factor at all.  The defendant was just doing as much harm to the society by supplying drugs to her friends free of charge.

33.  Mr Mui also mentioned the welfare of the defendant’s daughter.  The defendant should have thought about the welfare of her daughter before she committed the offence.

34.  On Charge 2, I take 9 months as the starting point.  The defendant is entitled to one-third reduction for her guilty plea.  That will bring her sentence down to 6 months’ imprisonment.

35.  I have borne in mind the totality principle, but Charge 2 calls for a consecutive term.

36.  For the reasons given, the defendant is sentenced to 30 months’ imprisonment.