HKSAR v. WAN LAU MEI

DCCC 959/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 959 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to three charges today.  Charge 1 was trafficking in dangerous drugs.  On 20 July 2016, at her home, the police found 13.3 grammes of a solid containing 8.32 grammes of cocaine, 2.82 grammes of a crystalline solid containing 2.76 grammes of methamphetamine hydrochloride, and 0.11 gramme of a powder containing 0.10 gramme of cocaine.

2.   The defendant unlawfully trafficked in these drugs.

3.   The 2nd charge was possession of apparatus fit and intended for the inhalation of “Ice”.

4.   Lastly, the defendant, on 18 November 2016, failed to comply with her bail conditions and surrender to custody on that date as appointed by a court; charge 3.

5.   The facts of this case are straightforward.  On 20 July, at about 8.30 pm, the police obviously targeted the defendant and her premises.  They raided her apartment in Yau Ma Tei.  Her home was searched.  Two bags of cocaine were found inside the edge of the toilet bowl.  A bottle containing some cocaine was found in a cupboard.  The police also found two bags containing “Ice”, another containing cocaine, and an “Ice” pipe, inside a cupboard.  On a coffee table they found 603 plastic bags, one packet of straws, five glass straws, a lighter, a calculator, and an electronic scale.  These items are commonly used in packaging drugs.  The police also found a tenancy agreement, some keys, and $18,400 in cash inside the defendant’s black shoulder bag.

6.   Under caution, the defendant admitted that the drugs in question were both for her self-consumption and for sharing with friends.  She told the police later, again under caution, that she worked as a cleaner for $5,000 to $6,000 a month; she had bought all the drugs from a man called “Ah Man” she met in an amusement games centre; and that the cash of $18,400 was her winnings from gambling. 

7.   It was agreed that the street value of the cocaine was about $15,100, and the “Ice”, $1,000.

8.   The defendant was on court bail and failed to appear according to her court bail on 18 November.  She was eventually arrested a month later on 16 December.  Under caution, she told the police that she did not feel well that day, but did not see a doctor, nor take any steps to contact police or her own lawyer.

9.   The defendant’s best mitigation today is her plea of guilty.  She is 56 years old, and has been married twice.  She has a daughter by her first marriage, but is no longer in contact with her.  She did have a boyfriend, who had a daughter she calls her stepdaughter, and received a letter from her which she read out in open court.  The defendant is now alone and lives alone.  She has siblings, but they have little to do with her because of her drug addiction.  She has a cleaning job earning between $5,000 to $6,000 a month, which she can supplement with other work and earn up to $8,000 to $9,000 a month.  Her rent for her apartment, according to the lease, is $4,200, which would not leave much for the defendant on a monthly basis if she has to not only pay rent but feed a drug addiction.

10.   I have been told the defendant has been a drug addict for over 20 years and is not in good health.  The defendant is certainly not a woman with a clear record.  She has 10 previous convictions obtained over eight court appearances.  She has two previous possession of dangerous drugs convictions in 2007 and 2012.  More seriously, she has four trafficking in dangerous drugs convictions in 2009, 2012 and 2013.  This case is her fifth trafficking conviction, and only occurred 10 months after she was released from her last similar conviction.

11.   A letter has been read to me from the defendant explaining that she wants to turn over a new leaf; has met and discussed, whilst in custody, a priest or a pastor who has helped her, and lastly, has signed up to be an organ donor.

12.   Everything that can be said has been said by Mr Yip in mitigation.  I have taken into account mitigation, the defendant’s background, her alleged health issues, and submissions.

13.   The two issues here are firstly, there is a submission that part of the drugs was for her own consumption.  Her previous drugs convictions and the “Ice” pipe found in the premises would support that, and the prosecution accept that some of the drugs would be for her own consumption.

14.   According to the authority of HKSAR v Chow Chuen Sang CACC 135/2011, the Court of Appeal is of the view that where part of a quantity of drugs is proved to be for own consumption, then a discount can be applied to the starting point to reflect this.  That authority says the discount can be between 10 to 25 per cent.  Factors that can affect what that discount should be include the quantity of drugs, whether there is evidence that the drugs are sold for financial reasons, as well as the background and criminal record of the defendant.

15.   The second issue here is that there are two types of drugs in Charge 1.  The question is how to come to an appropriate starting point.  There are two approaches the courts have previously considered, and that is the individual approach or the combined approach to sentencing.  These approaches are clearly set out in the authority of HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367 by Ma CJHC (as he then was).  I do quote him from page 371 from paragraph 9(ii):

“The combined approach whereby the court looks at the overall quantity of drugs rather than the individual parcels, in taking a global view, the court is then able to assess realistically and fairly the appropriate sentence.”

At (iii), he says:

“The methodology of this combined approach is first to calculate the applicable sentence for the more or most serious drug and then adjust the sentence upwards to take into account significant quantities of the other less serious drugs.”

At paragraph 10:

“Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically, and in a commonsense manner.”

16.   In my view, the combined approach would be appropriate here, but I will set out what the drugs would attract in themselves.  For trafficking cocaine, I would take into account the authority of R v Lau Tak Ming [1990] 2 HKLR 370, where between nought to 10 grammes of, in that case, heroin, but it is applicable to cocaine, is trafficked, a 2 to 5 year term of imprisonment would be appropriate. 

17.   Therefore, here, with a quantity of 8.42 grammes of cocaine, a starting point of 4 years and 6 months would be mathematically appropriate. 

18.   As for “Ice”, I take into account the authority of HKSAR v Tam Yee Chun (No 2) [2014] 4 HKC 256.  In that authority it was confirmed that where between nought to 10 grammes of “Ice” is trafficked, a 3 to 7 year starting point would be appropriate.

19.   Therefore, for a quantity of 2.76 grammes, a 4‑year starting point would be appropriate.

20.   In my view, “Ice” is somewhat the more potent of these two types of drugs.  The reason the individual approach would not be appropriate is if I took these two starting points together, it would be an excessive sentence.  In using the combined approach, I would consider “Ice” as the most potent dangerous drug and use that starting point of 4 years to begin with, and I must add to that starting point to reflect the quantity of cocaine.

21.   I add 21 months to that starting point to take into account the 8.42 grammes of cocaine. 

22.   Therefore, the starting point for Charge 1 is one of 5 years and 9 months.

23.   Coming back to the mitigation that part of the drugs was for self-consumption, I accept that that is the case here, but I also take into account the factors I have mentioned previously as relevant. Those include the packing paraphernalia found in the premises, the quantity of the cocaine and “Ice”, as well as the factor of latent risk always existing. Also, this is the defendant’s fifth conviction for trafficking drugs.

24.   After taking those issues into account, I will give a 17 per cent discount to reflect this mitigation.  That is a deduction of 12 months from that starting point.  Therefore, the starting point now becomes one of 4 years and 9 months.

25.   Defendant, please stand up.  You have pleaded guilty.  As I have said, that is your best mitigation.  You are entitled to another discount of a third from that starting point.  After that discount of 19 months is applied, for Charge 1, you are sentenced to 3 years and 2 months.  For Charge 2, I will take a starting point of 3 months’ imprisonment and deduct 1 month from that starting point to reflect your plea.  For Charge 2, you are sentenced to 2 months’ imprisonment.  For Charge 3, you had no good reason for failing to comply with your bail conditions, nor did you surrender; you were eventually arrested.  I will take a starting point of 3 months’ imprisonment, and deduct 1 month from that for your plea.  For Charge 3, you are also sentenced to 2 months’ imprisonment.

26.   I take into account the totality principle.  For Charges 1 and 2, I will order them to be served concurrently.  For Charge 3, I order it to be served consecutively to Charge 1.

27.   Therefore, the total sentence for these three offences is one of 3 years and 4 months.