HKSAR v. LASINI

DCCC 894/2018

[2019] HKDC 621

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 894 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon her own guilty plea of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap. 134.  The dangerous drugs involved were 226 tablets containing 50.69 grammes of 3,4-methylenedioxymethamphetamine, 3.97 grammes of a solid containing 3.30 grammes of ketamine, 15.70 grammes of a solid containing 11.40 grammes of cocaine and 244 tablets containing 23.13 grammes of chloroethcathinone.

Facts

2.  At all material times, PW1 and his family lived at the subject location in Wylie Court.  He employed PW2 and the defendant as domestic helpers.

3.  In mid-February 2018, PW1 and his family were out of town for a vacation, leaving the defendant and PW2 to look after the apartment.

4.  On 17 February 2018, PW2 saw the defendant put a package above the false ceiling inside the toilet of the maid’s room. 

5.  Feeling suspicious, PW2 reported the matter to PW1 when PW1 returned to Hong Kong on 19 February 2018.  PW1 then searched the toilet of the maid’s room, found the package and made a report to the police.

6.  The police seized the package.  Upon examination by the Government Chemist, it was found that the package contained 12 aluminium foil packages containing:-

(i) 226 tablets containing 50.69 grammes of 3,4-methylenedioxymethamphetamine;

(ii) 5 bags of materials containing a total of 3.97 grammes of a solid containing 3.30 grammes of ketamine;

(iii) 17 bags of materials containing a total of 15.70 grammes of a solid containing 11.40 grammes of cocaine; and

(iv) 244 tablets containing 23.13 grammes of chloroethcathinone.

7.  At the material time, the respective street values of 50.69 grammes of 3,4-methylenedioxymethamphetamine, 3.30 grammes of ketamine and 11.40 grammes of cocaine were approximately HK$3,900, HK$1,730 and HK$11,260.

8.  Upon arrest and under caution, the defendant said:-

(i) the package was given to her by a stranger, a south-Asian foreigner, at a taxi stop;

(ii) that stranger asked her to safe-keep the package and to return to him later; and

(iii) she therefore put the package above the false ceiling inside the toilet of the maid’s room on 17 February 2018.

Previous record

9.  Prior to the present conviction, the defendant had a clear record in Hong Kong.

Background and mitigation

10.  The Indonesian defendant was born in April 1981.  She received education up to primary school level.  She is married with 2 teenager daughters.  Before the commission of the present offence, she was a domestic helper.  She came to Hong Kong to work as a domestic helper in 2005.  She is not a drug user.

11.  A mitigation letter from the defendant was submitted to this court.  It was stated in that letter that the defendant kept the dangerous drugs for a friend for a reward of HK$1,000 to HK$1,500.

Sentence

12.  In respective of chloroethcathinone in the present case, it was submitted that it is chemically similar to amphetamine and methamphetamine as well as cocaine and ecstasy.  I was asked to put chloroethcathinone together with ecstacy and ketaime.  The prosecution agreed to such proposal.

13.  For the purpose of sentencing, I will put 23.13 grammes of chloroethcathinone together with 50.69 grammes of 3,4-methylenedioxymethamphetamine and 3.30 grammes of ketamine.  The aggregate quantity is 77.12 grammes.  For these 77.12 grammes of dangerous drugs, the sentencing tariff laid down in Secretary for Justice v Hii Siew Cheng[1] applies.  Where the narcotic content is between 50 and 300 grammes, the sentence after trial is between 6 and 9 years’ imprisonment.  It would attract a starting point of 75 months’ imprisonment for trafficking in 77.12 grammes of ecstacy/ketamine/chloroethcathinone.

14.  As for cocaine, I adopt the sentencing tariff laid down in R v Lau Tak Ming[2] and Attorney General v Pedro Nel Rojas[3].  It would attract a starting point of 5 years’ imprisonment for trafficking in 11.40 grammes of cocaine.

15.  Counsel for the defendant Mr Donald asked me to adopt the combined approach.  I agree it is the appropriate approach to sentence fairly, realistically and in a commonsense manner.

16.  I bear in mind the sentencing principles for trafficking in cocktail drugs laid down in HKSAR v Yip Wai-yin & Anor[4], HKSAR v Cheng Yat-ming[5] and HKSAR v Chan Yuk-leong[6].

17.  Using cocaine as the most serious drug in the present case and applying the “absurdity test”, the whole quantity of the drugs seized was 88.52 grammes which would have attracted a starting point of 9 years’ imprisonment.

18.  Applying the “conversion test”, 77.12 grammes of ecstacy/ketamine/chloroethcathinone would have attracted 75 months’ imprisonment which would have resulted from trafficking in about 27 grammes of cocaine.  If one were to add the converted quantity of 27 grammes to the 11.4 grammes of cocaine, one would arrive at a total of 38.4 grammes of cocaine which would have attracted a starting point of 7 years’ imprisonment.

19.  Applying the “ratio test”, on the basis that cocaine accounted for 0.12878 in weight of the total quantity seized (11.4/88.52) and ecstacy/ketamine/chloroethcathinone accounted for 0.87122 in weight of the total quantity seized, the total sentence should be approximately 81.86 months’ imprisonment made up as follows:-

Dangerous drug	Sentence assuming 88.52 grammes of single drug	Ratio	Sentence
Cocaine	108 months	0.12878	13.91 months
ecstacy/ketamine/ chloroethcathinone	78 months	0.87122	67.95 months
		Total:	81.96 months ==========

20.  In Chan Yuk-leong, the Court of Appeal observed that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  One is the ability of the trafficker to cater to a wider market.  The more important feature is the effect on users of combinations of dangerous drugs.

21.  In light of the aforesaid analysis, I adopt an overall starting point of 81 months’ imprisonment for the present case.  I give one-third discount to the defendant for her timely indication of guilty plea.  There being no further valid mitigation factors justifying further reduction in sentence, the defendant is sentenced to 54 months’ imprisonment.