HKSAR v. PANG SAU LAN

Transcript of the Audio Recording
of the Sentence in the above case

COURT:  On 1 September of last year, at about 6.17 pm, this defendant, a Hong Kong resident, re-entered Hong Kong at the Lok Ma Chau Control Point in the New Territories.  At the examination counter of the Customs Arrival Hall she was searched, and a paper bag was found in her handbag.  Inside that paper bag was another plastic zip lock bag which contained what was assumed, and correctly so as it transpires, to be a dangerous drug, namely ketamine.    

She was then arrested, and exercised her right to remain silent.  A subsequent analysis of the contents of the zip lock bag revealed that it contained 499.95 grammes of a powder containing 406.85 grammes of ketamine. 

On the day of her arrest she was charged with this offence.  On 20 February 2009 she appeared before Mr Ricky Chan, Permanent Magistrate, sitting at the Eastern Magistrates’ Court.  She was then represented by a Legal Aid counsel.  The charge was read to her, and the particulars were as follows:

“Pang Sau-lan, you are charged that on 1 September 2008, at Lok Ma Chau Control Point, New Territories, in Hong Kong, you unlawfully trafficked in a dangerous drug, namely 499.95 grammes of a powder containing 406.58 grammes of ketamine.”

On that day the defendant pleaded guilty, and today before me she has confirmed that plea.  The magistrate committed her to this court for sentence.  Prior to doing so a summary of facts was read over to the defendant in court and was admitted by her.  Again today before me she has accepted that that summary of facts, which includes an admission on her part that she was trafficking in a quantity of drugs particularised in the charge.  An admitted fact that the drugs were valued at $58,494 is indeed correct.  She then stands properly convicted of the charge.

An antecedent statement which has been tendered by the prosecutor reveals that the defendant was born on 23 August 1969, and she is therefore now 39 years of age.  At the time of the commission of the offence she was unemployed and in receipt of comprehensive social service allowances.  She is, by her own admission, a drug addict, and has apparently abused both Ice and ketamine since she was aged 27. 

The prosecution has provided to the court - and this is agreed by Miss Wong on behalf of the defendant - a criminal record summary.  That document demonstrates that the defendant has, since 1990, been before the courts on a number of occasions charged with both possession of dangerous drugs and trafficking in dangerous drugs.  In 1995 she was sentenced for trafficking in dangerous drug in the magistrates’ court, to be detained at a drug addiction treatment centre.  Subsequent to her release from that sentence she was again, in 1999, convicted of possession of dangerous drugs, trafficking in dangerous drugs, and again, in 2003, trafficking in dangerous drugs.  On that occasion, which was 6 November 2003, she was sentenced to 10 months’ imprisonment.  Perhaps the most significant of her convictions for trafficking in dangerous drugs was that in 1999 when she was sentenced, in this court, to 5½ years’ imprisonment.  It is apparent that the sentence in 2003 for trafficking in dangerous drugs must have been imposed shortly after her release from the 5½ year term of imprisonment imposed on the 6 July 1999. 

The defendant’s criminal record is unenviable.  It indicates clearly that, whilst she has been given opportunities in the past to reform and to desist from the consumption of dangerous drugs, and also to desist from being engaged in trafficking in dangerous drugs, she has apparently not taken advantage of these opportunities. 

On her behalf Miss Barbara Wong, in her helpful written submissions and orally before me today, has advanced a number of arguments which she submits would entitle the court to approach the sentencing of the defendant with a significant degree of leniency.  I will come to those in a moment. 

Miss Wong readily accepts in her written submissions and orally before me that the appropriate guidelines for sentence for trafficking in ketamine are those set down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng, which is now reported at 2009 1 HKLRD at page 1, and that the quantity of the drugs that this defendant was trafficking in falls within the fifth band of the guidelines, which suggested a range of sentences for those who traffic in 300 to 600 grammes of ketamine of a sentence of between 9 to 12 years.  She also accepts that all things being equal, that 400 grammes would normally attract a starting point for sentence of 10 years after trial.

I also accept Miss Wong’s submissions that apart from the fact that the drugs were imported into Hong Kong there are no other aggravating factors with respect to the defendant other than, of course, the obvious factor that this is not the first time that she has committed the offence of trafficking in dangerous drugs.  Nevertheless, it is not in the circumstances appropriate to increase the starting point by reason of the fact that she has brought the drugs into Hong Kong or by reason of the fact that she has previously been convicted of trafficking in dangerous drugs.

The submissions made by Miss Wong, in her written submissions and orally, address specifically the background of the defendant.  She points out that she has had a difficult life.  I accept that.  It has not been easy.  And I accept that there have been occasions when she has made an effort to turn her life around, but nevertheless it is apparent from her criminal record that those efforts have been short lived.  I accept, as Miss Wong has pointed out, that she has now reached the age of 39 years of age and wishes to be reunited with her daughter and to start a new life together with her sister, working at her vegetable stall.  All of these are considerations which I take into account when determining what is the appropriate level of discount to be provided to this defendant from the starting point for sentence. 

As I have indicated, given the parameters of the guidelines of the Court of Appeal, the appropriate starting point for sentence of this quantity of ketamine is 10 years’ imprisonment.  Miss Wong submits that an increase in the normal discount should be given to this defendant because of her background, because of her bleak life, and because of her unique circumstances.  She emphasises that as a woman she is in need of sympathy by reason of the fact that she is estranged from her daughter and that she has fallen prey to the influences of others, and in particular one of her former cohabitees, which has led her into being engaged in the past in drug trafficking.

It is apparent from the authorities that have been placed before me, and indeed the other authorities of the Court of Appeal, including the R v Lau Tak Ming, that the personal circumstances of those who engage in drug trafficking can rarely provide the basis for an increase in a discount for a plea of guilty.  This is all the more so in the case of this defendant when she has in the past been convicted of this very same offence.  She is properly entitled to a full one-third discount from the starting point of 10 years.  But there are, to my mind, no other factors which would justify me increasing the discount from the normal one-third. 

From that starting point the appropriate discount of one-third would result in a sentence of 6 years and 8 months’ imprisonment.  I have taken into account all of the matters advanced on her behalf by Miss Wong, but I am unable to say that it is appropriate or justified to increase the discount beyond that which I have indicated, in which case the sentence that I will impose is one of 6 years and 8 months’ imprisonment.