HKSAR v. LEE MEI WAH

DCCC 1189/2022

[2023] HKDC 1747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1189 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on her own plea and agreement to the Summary of Facts.

Facts

2.  At around 1:15 pm on 2 September 2022, patrolling police noticed the defendant acting furtively and intercepted her for inquiries.  A body search was conducted on the defendant and a small plastic “Tempo” tissues bag was found to be tucked inside the waistband of her pants.  The tissue bag was found to contain 2 transparent resealable plastic bags containing 30 yellow and 30 green plastic bags containing a total of 10.2 grammes of mixture containing 7.2 grammes of heroin hydrochloride.

3.  The defendant was later arrested.  Under caution, she said that she was given HK$600 for taking the white powder to Shek Kip Mei Estate.  The defendant admitted in a cautioned video‑recorded interview that the “white powder” she referred to under caution upon arrest meant dangerous drugs.

4.  Government Chemist confirmed the narcotic contents of the dangerous drugs.  The estimated price of the drugs seized was HK$7,049. 

5.  At all material times, the defendant possessed all the drugs seized for the purpose of unlawful trafficking. 

Criminal Record

6.  The defendant has 14 previous criminal records including 11 drug-related convictions, none similar to trafficking.

Mitigation

7.  The defendant is aged 48, divorced and has a daughter aged 25 whom has no contact with the defendant.  She also has a son aged 14 and a daughter aged 6, both of them live in Po Leung Kuk.  When the defendant was aged 3, her mother left the family.  The defendant’s father kept the family together and he is still alive and working as an odd-job worker.  The defendant has received education up to Form 2 level.

8.  It is said that the defendant was sent to DATC many times in the past for possession of dangerous drugs.  The last one was 21 September 2021.  Defence counsel submitted that as a result of the defendant being arrested in the present offence, a recall order was imposed on her and she has been detained for 3 months and 2 weeks under the said order.

9.  Defence counsel conceded that following the sentencing guideline in R v Lau Tak Ming & Others [1990] 2 HKLR 370, the sentencing starting point for trafficking the drugs in question would be 49.92 months’ imprisonment. 

10.  The defendant had been released from DATC about 5 months at the time of her arrest.  She was unemployed and depended on her father who has supported her monthly with $5,000 to $6,000.  It is said that the defendant wanted to earn some fast money to support herself as well as easing the financial burden of her father and, therefore, she committed the offence.

11.  Defence counsel urged this court to give the defendant one-third sentencing discount by reason of her guilty plea.  He also urged this court to give the defendant a further sentencing discount by reason that she was recalled as a result of the arrest in the present case.

12.  It is said that the defendant planned to find a decent job upon her release to look after the father.  She is asking for leniency.

Discussion

13.  Before sentencing this court has carefully considered mitigation by defence counsel. 

14.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life. 

15.  For trafficking 7.2 grammes of heroin, following the guideline in Lau Tak Ming, and as conceded by defence counsel, the sentencing starting point is 49.92 months’ imprisonment.

16.  This offence is a very serious offence and personal background is seldom a mitigating factor.  It is also well established that committing the offence for fast money or to ease the family financial burden is not a valid mitigating factor.  The most valid mitigating factor is the defendant’s guilty plea for which she is entitled to full one-third sentencing discount bringing her sentence to 33 months and 8 days’ imprisonment. 

17.  The fact that the defendant was recalled is not a valid mitigating factor.  She was released from DATC on a condition which she failed to abide by. The recall order is only part of the sentence for the previous case.

18.  The defendant committed the present offence while she has a suspended sentence still in force.  On this occasion, the court is not going to activate the suspended sentence as the nature of the present offence is different from theft, although this court suspects that the commission of the offence stems from the defendant’s addiction to drugs.

19.  The defendant is therefore sentenced to 33 months and 8 days’ imprisonment.