HKSAR v. LAI OI YEE

DCCC567/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 567 OF 2011

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Reasons for Sentence

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1.  Defendant has pleaded guilty to two charges, the first being trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. She admits trafficking the following: 5.79 grammes of “Ice,” 0.93 grammes of ketamine and 0.05 grammes of nimetazepam. The 2nd charge she has pleaded guilty to is possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. That is possession of a dangerous drug, namely, one plastic bottle containing 48 millilitres of a liquid containing traces of “Ice.”

2.  The facts of this case are very straightforward.  Acting on information, the police obtained a search warrant for the defendant’s place of abode.  The house search was carried out on 22 March this year.  Inside the defendant’s bedroom, there was this amount of dangerous drugs found as well as paraphernalia for packaging dangerous drugs. The inhaling device particularised in Charge 2 was also found in the defendant’s bedroom.  As I have just said, there were three types of dangerous drugs involved here.  

3.  Upon arrest, the defendant made a full admission and was fully co-operative with the police.  In a subsequent record of interview, the defendant admits trafficking the drugs for financial reasons. She had the device for inhaling “Ice” when she needed to relieve her own pressure and stress. 

4.  The defendant has three previous convictions. All relate to possession of dangerous drugs.  The last conviction was in 2008 and she was sentenced to a drug addiction treatment centre; she was sent there because she was confirmed to be a drug addict at that time.

5.  I have heard full mitigation on the defendant’s behalf and received a letter from the defendant asking for leniency.  She explains that she lives with her boyfriend who had, until he was sentenced to prison, financially supported her.  After he was sentenced to prison, the CSSA that she received for her and her daughter was insufficient to support them.  The defendant decided to sell dangerous drugs to supplement her income.  It was meant to only be a temporary measure until her boyfriend was released and could support her again.  In her letter, she hopes to be reunited with her daughter as soon as possible and be a responsible mother.

6.  The defendant’s best mitigation is her plea of guilty today.  I have heard mitigation on the basis that the defendant would have consumed some of the dangerous drugs herself, and certainly her record indicates as does the inhaling device found in her bedroom that she does take drugs herself.  Counsel has asked this to be taken into account when sentencing.

7.  Of the three types of drugs here, the “Ice” would attract the heaviest sentence.  There is less than 1 gramme of ketamine and 9 tablets.  If they were charged alone, they would attract short sentences in themselves.  Ketamine, according to the authorities, if there is up to 1 gramme of ketamine, sentence would be at the court’s discretion.  1 to 10 grammes would attract a 2 to 4 years’ sentence.  As for those tablets, they would attract a sentence of several months only. 

8.  According to the authority of Ching Kwok Hung [1991] 2 HKLR 125, the guidelines for sentencing drug traffickers of “Ice” is as follows: where there is up to 10 grammes of “Ice,” the appropriate sentence would be between 3 to 7 years.  According to my calculation, in this case, 5.79 grammes would attract for the “Ice” alone a starting point of about 5 years and 6 months.  As there are three types of drugs in Charge 1, I have looked at the authority of R v Yip Pik Kwai [1999] HKLRD 42 where it discusses the approach to be used when there are separate quantities of dangerous drugs trafficked.  It should be based on a total quantity, not individual smaller quantities.  I have also referred myself to the authority of HKSAR v Wong Kam Wo CACC469 of 2000. 

9.  I accept that it is very likely that part of the drugs were for self-consumption.  I cannot quantify how much, but I have looked at the authorities of HKSAR v Cheuk Kin Man CACC294 of 2009 and HKSAR v Wong Suet Hau & Another CACC366 and 487 of the 2000.  I will lower the starting point to reflect self‑consumption.

10.  Defendant, please stand up.  Accordingly, after considering the dangerous drugs in this Charge 1 as well as the quantities, mitigation and although the defendant has previous drugs convictions, this is the first for trafficking.  I will consider the defendant’s full co-operation with the police. 

11.  For Charge 1, I will take a starting point of 5 years and 6 months.  To reflect part of the drugs would be for self-consumption, I am reducing this starting point to 4 years and 6 months. The defendant has pleaded guilty today and is entitled to a discount of one-third from that starting point.  For Charge 1, the defendant is sentenced to 3 years’ imprisonment.

12.  For Charge 2, I will take a starting point of 24 months.  Defendant is entitled to a discount of one-third for her plea today.  For Charge 2, I will sentence defendant to 1 year and 4 months’ imprisonment. 

13.  Both Charges 1 and 2 will be served concurrently.  That is a total sentence of 3 years’ imprisonment.