HKSAR v. LEE WAI YEE

DCCC299/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 299 OF 2011

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Reasons for Sentence

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1.  Defendant, this morning I am going to sentence you. I can tell you straight away that the sentence that I will impose on you will be a total of 24 months’ imprisonment, and you can sit down now while I explain how I arrive at that sentence.

2.  This defendant appeared before me and pleaded guilty to two charges of trafficking in a dangerous drug, each contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  Both charges involved the trafficking of the drug ketamine.  Charge 1 involved a total quantity of 8.19 grammes of narcotic, and Charge 2 involved a quantity of 9.54 grammes of narcotic.

3.  The facts to which the defendant pleaded guilty were as follows:

Charge 1

4.  At about 11.35 pm on 31 December, the defendant returned home and the defendant’s mother found that the defendant appeared to be dull and there was a white-coloured powder near or in the defendant’s nostrils.  The defendant’s mother asked the defendant if she had been taking ketamine, and the defendant denied it.  The defendant’s mother then searched and found one transparent plastic bag containing suspected ketamine in the left pocket of the defendant’s jacket.  The mother then called the police.

5.  A police officer came to the defendant’s home. He took the suspected dangerous drugs from the mother, which was later tested and found to contain the 8.19 grammes of ketamine, and he asked the defendant what it was.  The defendant replied that it was “K Chai” or ketamine.  The defendant was then arrested, and under caution, she stated that the drug was purchased from someone in a disco in mainland China for RMB900 and that it was for her own consumption.  The estimated street value of this one packet of drug was $1,276.

Charge 2

6.  The facts in relation to Charge 2 were as follows.  It was 25 January 2011, and the defendant, who at this time was on bail in respect of Charge 1, was stopped crossing the border from the mainland into Hong Kong at Lowu by Customs and Excise officers, and she was searched.  Upon being searched, one packet of ketamine was found inside the defendant’s bra.  That packet was analysed by a government chemist and found to contain 9.54 grammes of narcotic.

7.  The defendant was arrested and cautioned by Customs and Excise officers whereupon she stated that she was bringing in the drugs from the mainland to help a friend and that she would be rewarded by being paid the sum of $2,000. 

8.  Subsequently, the defendant was taken to the police station, and when interviewed under caution by the police there, she stated that the drugs were purchased for RMB200 in Shenzhen and that it was for her own consumption.  She further stated that she had consumed ketamine for the past six months or so, taking two doses or “hits” per day of less than half a gramme of ketamine in each dose or “hit.”

9.  On the basis of this statement by the defendant, the quantity involved in Charge 2, namely, 11.76 grammes of powder containing 9.54 grammes of the narcotic ketamine, would have been sufficient for somewhere in the order of between 10 and 12 days of consumption based on her alleged consumption rate.

10.  In this police interview, the defendant was further asked why there was a discrepancy between what she had told the Customs and Excise officer upon arrest and what she had said in the interview with the police.  The defendant explained that she had panicked at the time she had been arrested and that the truth was that she had brought the drugs back to Hong Kong to consume it herself and that it was not the case that she was to be paid $2,000 for helping someone deliver the drugs to Hong Kong. 

11.  The estimated street value of this quantity of drugs in Charge 2 was $1,477.  Charge 2 was committed whilst on bail in respect of Charge 1.

Mitigation

12.  The defendant is 23 and has a clear record.  It appears the defendant has been in fairly steady employment over the last five or six years, having been a waitress, a shop assistant, and up to the time of her detention, a restaurant cashier and that she has made a very significant financial contribution to the family.

13.  I am told that when the defendant and her husband moved to Hong Kong from the mainland in 2005, the defendant was the only one who could work, her husband then awaiting his appropriate immigration papers.  Thus, the burden of financially supporting the family at that time fell entirely upon the defendant.  Indeed, when the defendant’s son was born in November 2006, the defendant returned to work within 40 days of the birth and once again was financially supporting her husband and her son and other members of the family.

14.  I have been told as part of the mitigation and I accept that in July 2010, the defendant and her husband began having serious marital difficulties.  Suffice it to say that in July 2010 when the defendant returned home from work one day, she discovered that her husband had packed his personal belongings, left their home and returned to the mainland.  The defendant then went to the mainland to look for her husband and several times over the next few months, it appears there were periodical comings and goings as the family was reunited and then separated.  There was turmoil on the domestic front.

15.  It seems this was a traumatic time for the defendant.  Her marriage was beginning to disintegrate.  She was working and she was trying to care for her son, and although she had the support of other relatives, including her mother, I am told it was a difficult time for her and I bear that in mind when determining the appropriate sentence in this case.

16.  Specifically, in respect of the charges, the mitigation advanced in respect of Charge 1 was that on 31 December, the defendant’s mother made the report to the police out of a sense of great concern for her daughter and her involvement in drugs.  I bear in mind the circumstances whereby a mother reports her daughter’s involvement in drugs to the police, knowing what the consequences of such a report may be.   

17.  Turning to Charge 2, 24 January 2011, I am told that on this particular occasion, once again the defendant’s husband and the defendant had fallen out.  There was an argument, and I am told that it was then the following day that the defendant went to mainland China where she purchased ketamine for her own consumption because she was unhappy and wanted to escape the current reality of her situation.

18.  I bear in mind the mitigation advanced and especially the defendant’s pleas and the admissions upon challenge on each occasion and the other circumstances which I have outlined.  As to whether I accept the mitigation that the drugs were for her own consumption, I have no hesitation in accepting that mitigation in respect of the 1st charge.  I have misgivings about accepting it in respect of the 2nd charge given the circumstances and the admissions under caution, and I reflect that in the sentences which I shall impose.

19.  There were also a number of letters that were advanced in mitigation written on behalf of the defendant.  They all describe the defendant in glowing terms.

The Authorities

20.  The principal sentencing authority in cases involving the trafficking of ketamine is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD and CAAR7 of 2006, and the indicated tariff sentences for the quantity of drugs involved in this case is a period of imprisonment of between 2 and 4 years, the tariff band being 1 to 10 grammes, 2 to 4 years.

21.  I am bound by the tariff sentences set down by the Court of Appeal in that case although I do bear in mind what was stated in HKSAR v Tang Tsz Yan & Another CACC325 of 2010 at paragraph 19 where it was stated:

“As this court has said on numerous occasions, the guidelines for sentencing in cases of unlawful trafficking in a dangerous drug are not straitjackets.”

22.  I also note Secretary for Justice v Chan Chun Tai(Fai?) CAAR11 of 2010, an application for review of sentence.  There, the Court of Appeal considered the issue of an individual defendant convicted for the offence of trafficking in a dangerous drug by way of importing or exporting, who then claims in their mitigation that the drugs were all for their own self-consumption.  At paragraphs 5 to 7, the court stated that:

“While we understand the judge’s concern that the drugs were for the defendant’s consumption, in our view, the judge’s approach was incorrect as a matter of principle. To start with, the defendant had committed and pleaded guilty to the offence of trafficking. It was not in any sense a technical offence. He was bringing the drugs from Hong Kong to Macau, and this constituted exporting the drugs within the meaning of section 2 of the ordinance. This court has held in Attorney General v Lau Chi Sing [1987] HKLR 703 that the act of a person taking dangerous drugs out of Hong Kong is trafficking in dangerous drugs within the meaning of sections 2 and 4 of the ordinance. The court, of course, recognised that if the drugs were indeed for the defendant’s own consumption, then this factor should be reflected in the sentence. In our view, the point to be emphasised is that the sentencing judge, in a situation such as this, must proceed on the basis that the defendant is charged with the more serious offence of trafficking and not simple possession. The self-consumption of drugs is only a matter that goes towards mitigation and does not by itself change the nature of the offence. Similar views were expressed in R v Chan Mung Lung CACC394 of 1991, R v Chung Kam Fai [1993] 1 HKC 42, and HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.”

23.  Having then considered the authorities and taking into account the mitigating factors and accepting that at least in respect of the 1st charge the drugs were entirely for the defendant’s own consumption, what is the appropriate sentence in this case?  

Charge 1

24.  In respect of Charge 1, I take a starting point of 2 years’ imprisonment.  I reduce that starting point of 2 years by one-third to reflect the defendant’s plea of guilty.  That results in a sentence of 16 months.  This 16 months is further reduced by a period of 4 months to take account of the various mitigating factors but especially by reason of the following:

(a) that the defendant’s own mother called the police and alerted them to the situation;

(b) that it was only on the defendant’s own admission that a charge of trafficking could be laid. It was she who admitted that she had brought the drugs into Hong Kong from the mainland; and

(c) she claimed and I accept that these drugs were entirely for her own consumption.

25.  Thus, the sentence in respect of Charge 1 that I impose is one of 12 months’ imprisonment.

Charge 2

26.  In respect of Charge 2, I take a starting point of 2 and a half years’ imprisonment, that is, 30 months.  I reduce that period of 30 months by one-third to reflect the defendant’s plea, thus arriving at a sentence of 20 months.

Totality

27.  I now turn to the issue of totality.  I accept that as a matter of sentencing principle, these offences are separate and distinct.  It therefore follows that entirely consecutive sentences ought to be imposed.  If entirely consecutive sentences were imposed in this case and I added 12 months in respect of Charge 1 and 20 months in respect of Charge 2, that would be a total of 32 months’ imprisonment.  That, in my view, may be excessive in light of all the circumstances. 

28.  Therefore, I order that 12 months of the sentence that I impose in respect of Charge 2 shall be consecutive with the sentence imposed in Charge 1 and that 8 months should be concurrent. By this exercise, the total sentence is one of 24 months’ immediate imprisonment.

29.  To summarise, the defendant is sentenced as follows: 12 months in respect of Charge 1, 20 months in respect of Charge 2; 12 of those 20 months to be consecutive, 8 months to be concurrent.  The total sentence is therefore 24 months’ immediate imprisonment.