HKSAR v. LI WING TONG

DCCC 813/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 813 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  Defendant appeared before me this morning and pleaded guilty to a single charge of “Trafficking in a Dangerous Drug”, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and also another charge of “Failing to surrender to custody without reasonable cause”, contrary to Section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2).

2.  The subject matter of the Charge 1 is mixtures of 15.08 grammes of a solid containing 12.59 grammes of cocaine.

3.  The subject matter of Charge 2 was that when the trial scheduled for Charge 1 was to be held on 20 January 2016, defendant failed to surrender to custody.  As a result, a warrant of arrest was issued and subsequently she was re-arrested by police on 9 February 2017, just over a year later.

Facts

4.  According to the summary of facts, which was admitted by defendant, she was first arrested by a police party inside a taxi at the junction of Parkes Street and Saigon Street, Yau Ma Tei, Kowloon on 14 July 2015 at about 1:03 am.

5.  After the police apprehended defendant and searched her, altogether there were seized from defendant 45 plastic bags containing a total of 15.08 grammes of a solid containing 12.59 grammes of cocaine.

6.  Under caution, defendant originally claimed that she bought those bags of cocaine for her own consumption.

7.  The street value of the cocaine was estimated to be $17,568.

8.  At that time, she was found in possession of cash of only $2,922.80.

9.  In relation to Charge 2, after defendant was arrested, she was charged first in the Magistrates’ Court and then later the case was transferred to the District Court and she had pleaded not guilty to the charge.  She was admitted to bail by the District Court and the trial was fixed to be held on 20 January 2016, with two days reserved.

10.  However, on the trial date, she failed to appear.  As a result, the trial judge issued a warrant of arrest against her and the bail money of HK$30,000 was also estreated.

11.  Just over a year later, on 9 February 2017, in Kwong Wah Hospital, defendant gave birth to a baby girl and she was later arrested by the police in the hospital.

12.  Under caution, she claimed that she wanted to take care of her 3-year-old daughter and she did not intentionally abscond.

Criminal record and personal background

13.  Defendant has hitherto a clear record.  She was born in Hong Kong.  She is now only aged 28 with Form 4 education.  She used to work as a waitress until 2015.

14.  At the age of 22, defendant gave birth to a young daughter.  Six months later, she married with the natural father and the couple resided in a rented premises in Shatin.

15.  According to Mr Cheung, the solicitor for the defendant, after marriage, the couple did not live harmoniously.  It is chiefly because the husband of defendant was himself a drug addict and he was intermittently arrested by the police for drug-related offences and was also sentenced to the Drug Addiction Treatment Centre (DATC) by the court.

16.  After a few years of the marriage, defendant’s husband deserted the family, leaving the young daughter to be taken care by defendant on her own.  With no financial support, defendant went to work as a waitress, earning an income of only $18,000 but the money was never enough to cover the costs of living.  At the same time, she had acquainted with some dubious peers and, worse still, she developed into the habit of taking cocaine to relieve pressure.

17.  For the present offence, Mr Cheung informed the court that defendant was stupid enough to be lured to commit the offence for a reward of HK$5,000 which she has never received after the arrest.

18.  In relation to Charge 2, Mr Cheung informed the court that defendant was very immature and ignorant and she was always afraid of not being able to see and take care of the elder daughter so she just decided to abscond and surrender the custody of the elder daughter to her parents.

19.  In the year during which defendant was absconding, she had a relationship with another man and accidentally she became pregnant.  With no alternative, she decided to face the consequences and went to the hospital to give birth to her young baby daughter.

20.  In mitigation, Mr Cheung also submitted to the court for consideration two mitigation letters:  one written in English by defendant herself and one written in Chinese by her parents. 

21.  I am not going to refer to the details of these two letters.  Suffice it to say that defendant had indicated her remorse in this letter and she had promised the court to behave in the future and, with the help of the parents to take care of the babies, defendant asked the court to be as lenient as possible.

22.  From the parents’ letter, I can understand that they were very saddened to see that the daughter had gone astray but they were still being very supportive of her and vowed to take care of the two young babies of the daughter and asked the court to be as lenient as possible and to offer a chance to the daughter so that she can come out soon enough to take care of her two young babies.

Sentencing considerations

23.  Drug trafficking is, of course, a very serious offence and, because of this, the Court of Appeal has repeatedly emphasised that whoever takes part in such an evil business, irrespective of his or her age or her background or the circumstances in which the offences are committed, can expect no mercy from the court.

24.  The present case involves, as it were, trafficking in cocaine and, according to the case of Attorney-General v Rojas [1994] 1 HKC 342, the sentencing guidelines for heroin are applicable to cocaine.

25.  In the case of Lau Tak Ming & Anor [1990] 2 HKLR 370, for a quantity between 10 to 50 grammes of heroin, the tariff sentence is between 5 years to 8 years’ imprisonment.

26.  Therefore, if the whole quantity of the present case of cocaine was taken into consideration, the starting point should be 5 years’ imprisonment.

27.  The only effective mitigating factor is, of course defendant’s pleading of guilty, which is an indication of remorse.

28.  However, defendant is not offering a timely plea in Charge 1 as she has absconded.

29.  According to the Court of Appeal, the usual range of discount afforded to a defendant who has absconded is about 20% to 25% (see HKSAR v Lo Kam Fai [2016] 2 HKLRD 308).

30.  The Court of Appeal also went on to say that there are circumstances particular to a particular case which would justify discount outside the range.  Within the usual range, the judge has the discretion in determining the discount appropriate to the circumstances of any particular case.

31.  In this case, I cannot see any particular circumstance which can justify a further discount other than the usual range. 

32.  Within the usual range, I am minded to grant the defendant a 25% discount.  This is because I was informed, and which has been confirmed by the prosecution, that in the hospital defendant had on her own initiative informed the social worker about her status as an absconded person and asked the social worker to contact the police to re-arrest her. 

33.  As said, in relation to Charge 1, I would use 5 years (and that is 60 months) as a starting point.

34.  After giving her a discount of 25%, which is 15 months’ reduction, in relation to Charge 1, the final sentence is 45 months’ imprisonment.

35.  In relation to Charge 2, I would use 6 months as a starting point because the absconding period is over a year.  I would give defendant a full one-third discount because this is a timely plea in relation to this charge so the resulting sentence is 4 months’ imprisonment.

36.  The two sentences are separate and distinct, and I therefore order that the sentence on Charge 2 to run consecutively to the sentence on Charge 1.

37.  The total sentences of the two charges is therefore 49 months’ imprisonment.