HKSAR v. HAU YING CHI

DCCC 47/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 47 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The facts of this case are very straightforward.  On the afternoon of 15 November 2012 the defendant was discovered by a police officer looking suspicious.  This officer stopped the defendant outside Lok Fu Plaza and proceeded to search her person.

3.  This officer found in her hand a plastic bag containing a white powder.  In her other hand she was holding a mobile phone, HK$1,630 and keys.  She admitted the powder was heroin and told the officer it was for her own consumption.

4.  In a subsequent videoed record of interview she told the police again that the heroin was for self-consumption and the cash was her savings. 

5.  The estimated street value of the significant amount of heroin, which was confirmed to be 28.55 grammes of a mixture containing 21.65 grammes of heroin hydrochloride, was $25,609.00.

6.  The defendant at the time of her arrest was 3 months pregnant, she is now 8 months pregnant. 

7.  The defendant is not a person of clear record. She has many previous similar convictions but all are related to either possessing dangerous drugs or inhaling dangerous drugs.  This is her first conviction for trafficking dangerous drugs.

8.  I have heard mitigation put forward on her behalf today. 

9.  The defendant is 33 years old with two children who are 10 and 2 years old.  They are now under the care of her mother.  One could say these children come from a broken home.  Their father has long gone and their mother is a drug addict.  The older one has watched his mother go in and out of drug addiction treatment centres.  I sympathise with these children. 

10.  The defendant herself did not finish her education, has not been gainfully employed and clearly has been a drug addict for many years.  She barely survives on government assistance which is why she agreed to act as a drug mule to make money quickly.  The defendant will find it hard to dig herself out of this lifestyle but says, according to her mitigation letter, that she will try hard.  The letter expresses remorse and gratefulness to her mother.

11.  The defendant’s best mitigation today is her plea of guilty.

12.  Where trafficking heroin is concerned there are guidelines that this court will follow set out in R v Lau Tak Ming and Others [1990] 2 HKLR 370.  The Court of Appeal is of the view that where between 10 and 50 grammes of heroin is trafficked that will attract a starting point of between 5 to 8 years’ imprisonment. 

13.  Pregnancy is no bar to a term of imprisonment appropriate to the offence.  When a charge is as serious as this it is not a factor that justifies a reduction in sentence.  Moreover, in this case the defendant was pregnant before the commission of the offence and committed the offence with full knowledge of her pending motherhood.  The authorities I am confident have medical facilities and medical care to help the defendant give birth whilst serving a sentence.  It is a shame that an innocent child must be born in a prison through no fault of its own.

14.  According to the guidelines, mathematically speaking, 20 grammes of heroin would attract a starting point of 5 years and 9 months.  I will slightly lower that starting point having heard mitigation today and for the fact that this is the defendant’s first conviction for trafficking dangerous drugs.  The defendant must now realise the seriousness of this offence.

15.  I take a starting point of 5 years and 3 months.  For the defendant’s plea today she is entitled to a discount of one-third.  Accordingly, the defendant is sentenced to a term of imprisonment of 3 years and 6 months.