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HCCC 169/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 169 OF 2016
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| Date: |
23 May 2017 at 12.49 pm |
| Present: |
Mr Martyn Richmond, for HKSAR
Ms Emily Cheung S K, of Cham & Co, for the accused
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| Offence: |
(1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in a dangerous drug (販運危險藥物)
(3) Conspiracy to trafficking in dangerous drugs (串謀販運危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Stand up, please, defendant.
The defendant was charged with two counts of trafficking in dangerous drugs and one count of conspiracy to traffic in dangerous drugs. She pleaded guilty to one count of trafficking in dangerous drugs and one count of conspiracy to trafficking in dangerous drugs before me.
Upon the application by the prosecution, I ordered that the other charge of trafficking in dangerous drugs be left in the court’s file which shall not be proceeded with, without leave.
The defendant was stopped by the police together with a male named Ho Ka-fu outside the residence of the defendant in Sham Shui Po in the morning on 14 August 2015. Some drugs were found in a cigarette box carried by the defendant. The defendant was arrested and she said, under caution, that she worked for a person called Fu Chai, to deliver the drugs.
Around 2 or 3 months ago, Fu Chai asked her to deliver drugs. Fu Chai then brought drugs to her home and asked her to pack them. When Fu Chai’s customer needed drugs, he would give the drugs to the defendant and drive her to deliver the drugs to his customers.
The residence of the defendant was searched and the following quantities of different kinds of drugs were found:
(a) 19.12 grams of a solid containing 17.43 grams of cocaine.
(b) 5.24 grams of a crystalline solid containing 5.08 grams of methamphetamine hydrochloride, commonly known as “Ice”.
(c) 12.79 grams of a powder containing 7.43 grams of ketamine.
(d) five tablets containing a total of 0.01 grams of methamphetamine and 0.47 grams of methylenedioxymethamphetamine.
(e) two electronic scales, some resealable transparent plastic bags and two “Ice” inhaling devices were also found.
Under further caution the defendant said Fu Chai brought to her home the drugs, the electronic scales and the empty resealable transparent plastic bags. She used the “Ice” inhaling devices to smoke “Ice”.
In subsequent cautioned video-recorded interviews, the defendant said, among other things, that she was unemployed for around half a year, earning around $1,000 per week for doing part-time works. She rented and lived at the relevant flat for about a year and paid HK$4,300 rent per month. She had borrowed a loan of HK$10,000 and had used up her credit of her credit cards.
The person who was arrested together with her was Fu Chai. He gave her the drugs she was carrying and he brought the drugs found in her flat to her. She weighed and packed the drugs into small packets. She would receive $10 per packet as reward. Fu Chai would also drive her to deliver drugs to his customers and she would pass the money received from the customers to him. She would ask Fu Chai to pay for her rent.
The estimated street value of the drugs found were, respectively, $22,823 for the cocaine, $1,892 for the “Ice”, and $1,732 for the ketamine.
The defendant had pleaded guilty to trafficking in dangerous drugs in respect of the drugs found in her flat and conspiracy to traffic in dangerous drugs with Fu Chai in the period June and August 2015.
The defendant is now 25 years old. She was born in Hong Kong and received local education up to Form 5 level. After graduation, she had worked as a restaurant waitress and cashier but at the time of her arrest she had been unemployed for 6 to 9 months. She was living alone at the time of the offence and after that she moved back to live together with her parents and younger sister. Her father is a construction worker and her mother is a housewife.
The defendant’s parents have written a letter to this court asking for leniency and they said that the defendant was a good girl but unfortunately she met people who had influenced her badly and led her to toy with drugs.
The defendant herself has also submitted a letter to me saying that she is now very remorseful and prepared to bear the consequence.
Her former teacher and her good friend have also written letters to me asking for leniency on behalf of the defendant.
The defendant was convicted of possession of dangerous drugs in March 2017 and sentenced to a probation order of 18 months. She was in breach of that probation order and, as a result, she was sentenced to the DATC in April 2017.
At the time of committing this offence she had a clear record.
Trafficking in dangerous drugs is a very serious offence. For different kinds of drugs the Court of Appeal has laid down different tariffs for sentence. The level of sentence depends mainly on the quantity of drugs involved.
The tariffs laid down by the Court of Appeal are binding on this court.
In respect of the trafficking in a cocktail of drugs, the court will consider sentence by adopting either an individual approach or a combined approach. In the present case, it would be appropriate to adopt a combined approach.
Ms Cheung, counsel for the defendant, has kindly prepared a written submission with calculations of the terms of sentence, applying the different methodology recognised by the Court of Appeal in case of HKSAR v Chan Yuk Leung [2014] HKCU 889, namely the absurdity test, the conversion test and the ratio test, with reference to the different tariffs laid down by the Court of Appeal for the trafficking in cocaine, “Ice” and ketamine, in respect of the quantities of the respective drugs involved in this case.
In applying the absurdity test, the overall sentence arrived at is 8 years and 4.7 months’ imprisonment. In applying the conversion test the sentence is 7 years and in applying the ratio test the sentence is 6.7 years.
Ms Cheung submitted that the defendant was used by Fu Chai to traffic drugs and she herself was a drug abuser. The defendant has now determined to turn over a new leaf to her life with the full support of her family.
As I said, trafficking in dangerous drugs is a very serious offence and the heavy sentence imposed is for general and individual deterrence. Usual mitigation like a clear record or financial hardship can hardly be valid mitigating factors.
In the present case, taking into account all the circumstances and the mitigation advanced by Ms Cheung, in my view, the appropriate starting point for sentence of the defendant in relation to the charge of trafficking in dangerous drugs should be 7 years’ imprisonment. With this starting point, I have already considered the fact that the defendant was herself a drug abuser and, on the other hand, that there was a cocktail of drugs involved.
Taking into account the defendant’s plea of guilty, the sentence is reduced to 4 years and 8 months’ imprisonment.
Regarding the conspiracy charge, I agree with Ms Cheung that the offence was revealed only because of the defendant’s own admission and the trafficking in DD charge is basically a part of this conspiracy.
In the circumstances, I will equally impose a sentence of 4 years and 8 months’ imprisonment for this count and order that the whole sentence is to run concurrently to the other count.
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