HKSAR v. LEE KA YEE

HCCC350/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 350 OF 2009

----------------------

---------------------

-------------------------------------

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

-------------------------------------

COURT: The defendant, Lee Ka-yee, faced two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. She pleaded guilty before a magistrate and is committed to the Court of First Instance in the High Court for sentence.

  The Summary of Facts: the Admitted Facts disclose that the defendant was intercepted by Customs Officers at the Lok Ma Chau Border Control Point when she returned to Hong Kong from the Mainland. Upon search, a packet containing 82.01 grammes of a crystalline solid containing 80.48 grammes of methamphetamine hydrochloride, normally called ice, was found inside her handbag. She was arrested and cautioned for the offence of trafficking in a dangerous drug. In reply, the defendant said a friend had asked her to bring a bag containing the packet from the Mainland to Hong Kong and she did not know what was inside it.

  The defendant was later taken back to her home for a search. A plastic bag containing 0.51 grammes of a powder containing 0.32 grammes of ketamine was found inside a paper box in a cabinet of the bedroom. The defendant, under caution, said the ketamine was hers. The street value of the dangerous drug was estimated to be HK$49,756.71. The defendant was later interviewed under caution. She said a friend gave her a bag in China. She did not know what was inside the bag when she brought it to Hong Kong. In relation to the ketamine found at her home, the defendant said she helped a friend to keep the paper box containing the ketamine.

  In admitting the offences before the magistrate and confirming her plea before me, she admitted that she trafficked both substances at the material time.

  The defendant's background: the defendant is 19 years of age, single, she does not have any criminal record in Hong Kong. I was told that she was a student re-sitting her School Certificate Examination at the time of the arrest and she was also working as a sales person.

  Mr Andy Hung, counsel for the defendant, told me in mitigation that the defendant was unwittingly used by an acquaintance when she agreed to carry a bag containing what she thought was a bottle of lotion from Shenzhen to Hong Kong. She discovered, just before she passed through the Immigration Control in the Mainland, that the bag did not contain any lotion. When she was on board a cross-border bus on the way to the Hong Kong Immigration Control she examined the contents of the bag and found it contained the ice. Mr Hung said she then found herself in a “catch-22” situation and she decided to continue with her journey. She was intercepted and arrested by the Customs Officers.

  Mr Hung submitted that the defendant did not have the intention to traffic in a dangerous drug and certainly not for gain. While the defendant did bring the ice in from the Mainland, Mr Hung submitted in the particular circumstances of this case there is no international element to aggravate the situation. So basically, Mr Hung submitted that the defendant was used by others and unwittingly trafficked in the dangerous drug. Mr Hung also submitted that the defendant was not a drug dependant, though she had tried out drugs under the influence of friends. The ketamine found in her room was left behind by a friend.

  Trafficking in a dangerous drug is a serious offence. The Court of Appeal had laid down guidelines for the trafficking of ice and ketamine. For the trafficking of 70 to 300 grammes of ice, the starting point is between 10 to 14 years: AG v Ching Kwok Hung [1991] 2 HKLR 125. For the trafficking of up to 1 gramme of ketamine the starting point is within the court's discretion: Secretary for Justice v Hii Siew Cheng & Anor [2008] 3 HKC 323.

  In the present case the defendant trafficked in more than one kind of drugs. The amount of ice is fairly substantial 80 grammes, whereas the amount of ketamine is rather small less than 1 gramme. In my view, the amount of ketamine was so small that whether I adopt the “individual approach” as in the case of HKSAR v Lai Kwok Hung CACC 564/2002, or the “combined approach” as in HKSAR v Yip Wai Yin [2004] 3 HKC 367 to deal with the two kinds of the dangerous drugs, it will not make any difference to the overall sentence.

  The defendant is a first offender and is relatively young. As a first offender, when faced with a serious offence of this kind, there is not much that a court can do. I have ascertained from Mr Hung that there cannot be said to be a positive good character in the defendant's case. Although the defendant denied knowledge when first confronted by the authorities, she did plead guilty at the earliest opportunity.

  While I was a bit sceptical regarding the defendant's story of how she was unwittingly used by an acquaintance when I first read about it, bearing in mind the value of the ice involved, I am prepared to sentence the defendant based on her version of how she came to traffic the ice in question. I will adopt the lowest starting point possible within the range and give the defendant the usual one-third discount.

  For the trafficking of ice, I adopt a starting point of 10 years. With the one-third discount the sentence is one of 6 years and 8 months. For the trafficking of ketamine, I adopt a starting point of 1 year. With the discount the sentence is one of 8 months.

  After considering all the circumstances, including the nature and quantity of the drugs involved, I order both sentences to run concurrently as I am of the view that an overall sentence of 6 years 8 months properly reflects her criminality in trafficking both kinds of dangerous drugs.

  The 1st count trafficking in a dangerous drug the sentence is 6 years and 8 months. The 2nd count trafficking in a dangerous drug the sentence is 8 months’, to run concurrently with the 1st count; making a total of 6 years 8 months.