HKSAR v. LAU KA MAN, AMY

HCCC 108/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 108 OF 2015

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant has been convicted on her own plea of one count of trafficking in dangerous drugs.

The Particulars of Offence provide that on 7 November 2014, at Room 139 Tsui Yeung House, Tsui Ping (North) Estate, 19 Tsui Ping Road, Kwun Tong, Kowloon in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 2,006.15 grammes of a crystalline solid containing 1,961.94 grammes of methamphetamine hydrochloride; 12.5 grammes of cannabis in herbal form; 0.09 gramme of a powder containing heroin hydrochloride; 0.01 gramme of a powder containing heroin hydrochloride and midazolam; 0.09 gramme of a powder containing ketamine; 0.05 gramme of a powder containing cocaine and 0.03 gramme of a solid containing cocaine.

The Summary of Facts which has been admitted by the defendant provides that in the evening of 7 November 2014, the police was carrying out an anti-narcotics operation at Tsui Yeung House, Tsui Ping Estate, Kwun Tong. PC6529, Sergeant 34974 and PC3196, amongst others, participated in the operation.

On the same day at around 2105 hours, PC6529 was monitoring the rear staircase landing near Room 139, Tsui Yeung House. PC6529 observed that a female, later known as Yim Ka-pik (“Ms Yim”) was knocking on the door of Room 139, Tsui Yeung House (“the unit”). Afterwards, someone opened the metal gate and wooden door from the unit.

PC6529 entered the unit with Sergeant 34974. PC6529 observed that, apart from Ms Yim, two males and one female were present in the unit, namely,

(1) a male surnamed Wu;

(2) a male surnamed Lee; and

(3) the defendant.

Shortly after, other police officers including PC3196 arrived at the unit. PC3196 conducted a search of the unit and found numerous packs of suspected dangerous drug ‘Ice’ and one pack of suspected dangerous drug cannabis on the wooden tables and glass table beside the bed; and on the floor near the bed. A cloth bag containing 8 packets of suspected dangerous drugs ‘Ice’ was also found in the wardrobe at the rear of the bed. Additionally, certain utensils commonly use as paraphernalia for drug consumption was also found in the unit.

Subsequently, PC6529 arrested and cautioned the defendant for the offence of “trafficking in a dangerous drug”. Upon caution, the defendant said to PC6529:

“Ah Sir, the stuff on the tables, on the floor and the little boxes are mine. These are merely for my own consumption. As to the “cold stuff” in the wardrobe, I didn’t know when it was put there. It seemed that it was brought back by my boyfriend, “Tai Ma” this morning.”

At the time of arrest, the defendant was in possession of HK$1,050.

The defendant was taken into police custody and taken to Kwun Tong Police Station. Between 2354 hours on 8 November 2014 and 0032 hours on 9 November 2014, the defendant voluntarily participated in a cautioned interview in a video-interview room at Kwun Tong Police Station. In the video-recorded interview, the defendant admitted to the following:

(1) the defendant was unemployed and the registered occupant of the unit;

(2) her boyfriend, Mr Wu, would stay in the unit for about five days a week;

(3) when she was confronted by the police officers about the drugs found in the unit, she said out of fear:

“As to the cold stuff in the wardrobe, I didn’t know when it was put there. It seemed that it was brought back by my boyfriend, Tai Ma this morning”;

(4) in fact, the ‘Ice’ found in the wardrobe was also the defendant’s;

(5) the defendant came to know a person by the name of “Tai Hung” at a bar in Tsim Sha Tsui and she agreed to keep drugs for Tai Hung at the unit;

(6) Tai Hung would arrange customers to come to the unit and purchase drugs from the defendant;

(7) Tai Hung, or one of his subordinates, would arrange drugs to be delivered to the defendant at the unit once every two days;

(8) Tai Hung or one of his subordinates would collect the sale proceeds for the drugs from the defendant at the time of delivering drugs to her;

(9) in return, the defendant received HK$1,000 a day as reward;

(10) the defendant’s boyfriend, Mr Wu, played no part in the aforementioned transactions;

(11) Mr Lee was a friend of the defendant and he came to the unit to obtain ‘Ice’ from the defendant for his own consumption;

(12) Ms Yim was a friend of the defendant and she only went to the unit to have a chat with the defendant; and

(13) all the drugs found and all the packaging and consumption paraphernalia belonged to the defendant.

At a later time, a Government Chemist examined the suspected dangerous drugs found in the unit. Altogether they consisted of the dangerous drugs as particularised in the charge.

At the material time, the total street value of the dangerous drugs found in the unit totalled $806,115.

In the Summary of Facts, the defendant expressly admitted that at all material times, she knew she was dealing in dangerous drugs when she stored and dealt in the dangerous drugs.

By way of personal background, the defendant is 30 years of age. She was born in Hong Kong in April 1986. She has received education up to secondary Form two level. At the time of her arrest, she was unemployed, but she had formerly worked as a sales girl. The defendant is single. She has two daughters aged respectively 7 and 11. At the time of her arrest, she was cohabiting with her boyfriend, namely Mr Wu referred to in the Summary of Facts.

The defendant has seven previous criminal convictions, one of which is for possession of dangerous drug and one for trafficking in dangerous drug. The trafficking conviction was recorded in 2006, for which the defendant was sentenced to 4 months’ imprisonment.

In mitigation, Mr Roderick Wu, on behalf of the defendant, submitted that she is remorseful, and her remorse is demonstrated in her guilty plea. Mr Wu realistically and helpfully accepts that arising from her personal circumstances, the only mitigating factor is the defendant’s guilty plea.

Three mitigation letters from respectively the defendant, a work colleague of the defendant and a minister of the Christian Prison Pastoral Association have been submitted to the court. Their contents have been duly noted.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in drug trafficking cases, which call for severe deterrent sentences in order to protect the public.

The dangerous drugs involved in the present case include, inter alia, 2,006.15 grammes of a crystalline solid containing 1,961.94 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The offence was committed on 7 November 2014, ie, after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the ‘Ice’ drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the ‘Ice’ drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 1,200 to 4,000 grammes of heroin, the guideline starting point after trial should be 23 to 26 years’ imprisonment.

In my view, based on the quantity of methamphetamine hydrochloride involved (1,961.94 grammes), the proper starting point for sentence in the present case should be 23 years and 9 months’ imprisonment.

I shall not increase the starting point on account of the other dangerous drugs particularised under the charge. In terms of weight, they amount to 12.77 grammes of narcotics, the majority of which is cannabis in herbal form. In my view, even if these other narcotics all consisted of the more serious ‘Ice’ drug, they would not materially increase the starting point of 23 years and 9 months for 1,961.94 grammes of ‘Ice’.

I shall give the defendant a full one-third discount for her guilty plea. Further, there are special circumstances on the papers which justify a lenient view to be taken of the facts. As a result, I shall give the defendant a total discount of 47% (which includes the one-third reduction for the guilty plea) from the starting point of 23 years and 9 months’ imprisonment.

The defendant is accordingly sentenced to 12 years and 7 months’ imprisonment.