HKSAR v. Lee Wai Kwan

HCCC 46/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 46 OF 2015

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

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

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

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

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

COURT: The defendant has pleaded guilty to one charge of trafficking in a dangerous drug and one charge of possession of a dangerous drug.

The Particulars of Offence for Charge 1 provide that on 3 August 2014, at the Customs Arrival Hall, Lo Wu Control Point, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely, 1,456 grammes of a crystalline solid containing 1,450 grammes of methamphetamine hydrochloride.

Particulars of Offence for Charge 2 provide that on 4 August 2014, at Flat B1, 2nd Floor, King On House, Nos 144-148 Lai Chi Kok Road, Sham Shui Po, Kowloon, in Hong Kong, the defendant had in her possession a dangerous drug, namely 0.15 gramme of a crystalline solid containing 0.15 gramme of methamphetamine hydrochloride.

The guilty pleas were entered at the first opportunity at the Magistrates’ Court on 23 January 2015.

The Summary of Facts admitted by the defendant provides that on 3 August 2014, at around 11:23 pm, the defendant was intercepted at the Customs Arrival Hall of Lo Wu Control Point. A total of three plastic bags were found attached to her waist and thighs. These three plastic bags contained suspected dangerous drugs, which were later confirmed to be a total of 1,456 grammes of a crystalline solid containing 1,450 grammes of methamphetamine hydrochloride.

After being arrested and cautioned, the defendant said that:

(i) She would receive $10,000 for carrying the 'Ice' to a person called Kam Shing;

(ii) Kam Shing had put the 'Ice' on her body and said that he would help the defendant to remove them.

On 4 August 2014, a search was conducted at the defendant’s residence at Flat B1, 2nd Floor, King On House, Nos 144-148 Lai Chi Kok Road, Sham Shui Po, Kowloon. The following items were found on a table inside the premises:

(i) One plastic bag containing 0.15 gramme of a crystalline solid containing 0.15 gramme of methamphetamine hydrochloride.

(ii) One inhaling device (consisting of one plastic bottle inserted with two plastic straws with one of which further connected to another plastic straw) containing 0.06 gramme of a powder containing methamphetamine.

Under caution, the defendant said that the 'Ice' was for her own consumption.

In her video-recorded interview, the defendant said under caution, inter alia, that:

(i) On 3 August 2014, she went to Shenzhen with Kam Shing.

(ii) Kam Shing attached the seized 'Ice' to her waist and thighs. He instructed the defendant to bring the drug to Hong Kong.

(iii) The defendant had not received her reward of $10,000 from Kam Shing for bringing the 'Ice' to Hong Kong.

(iv) The original plan was to hand over the 'Ice' to Kam Shing at Nam Cheong Street after her return to Hong Kong but Kam Shing later changed the location for handing over the 'Ice' to her residence.

(v) She had been unemployed for one month.

(vi) The cash found on her (HK$8,341) comprised of money which she had won from playing mah-jong and money which someone had repaid her.

(vii) The 'Ice' found at her residence was for her own consumption.

In August 2014, the estimated retail value of the seized dangerous drug was HK$620,345.46.

By way of personal background, the defendant is 45 years of age. She was born in Shanghai, China, in March 1970. She is divorced. She received education up to lower secondary level in Shanghai. She was unemployed at the time of her arrest.

The defendant became married to a Hong Kong man in the year 2000. In 2005, the defendant moved to Hong Kong. In 2002, she gave birth to a son, who is now 13 years old. In 2008, she was divorced from her husband, having discovered that he was having an affair. Thereafter, the defendant received no financial support from her husband. The defendant worked in a hotel as a cleaner, in restaurants and as a massage therapist.

In 2009, the defendant was diagnosed to be suffering from schizophrenia with suicidal tendencies. I am told that the breakdown of her marriage is the turning point in the defendant’s life.

The defendant has two previous criminal convictions, neither of which is related to dangerous drugs.

By way of mitigation, Miss Olivia Tsang submitted on the defendant’s behalf that she is remorseful. After her marital breakdown, the defendant became addicted to mah-jong. She was introduced to Kam Shing, referred to in the Summary of Facts, who operated a mah-jong parlour. Before the present offence, Kam Shing alleged that the defendant owed him money. Kam Shing asked the defendant to traffic drugs as a way to repay him. It was under the influence and coercion of Kam Shing that the defendant committed the trafficking offence.

However, while forming the backdrop to the reason for the defendant committing the offence, the defendant’s personal circumstances can be of no mitigation to the commission of such a serious offence.

On Charge 1, trafficking in a dangerous drug, the narcotic involved is 1,450 grammes of methamphetamine hydrochloride, commonly known as 'Ice'.

In the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, it was held by the Court of Appeal that for trafficking in amounts of 600 grammes and over of 'Ice', the same tariffs as are prescribed in the case of HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin are applicable. In the Abdallah case, for trafficking in between 1,200 and 4,000 grammes of heroin, the proper sentence to be imposed after trial was held to be 23 to 26 years’ imprisonment.

In my view, following the guidelines in the Tam Yi Chun case and the Abdallah case, and based on the quantity of the narcotic involved, the proper starting point for sentence for Charge 1 in the present case should be 23 years and 3 months’ imprisonment.

The Court of Appeal in the Abdallah case also held that it would be an aggravating factor calling for the enhancement of the starting point where an international element is involved, which is the situation in the present case. The Court of Appeal further held that the enhancement for amounts above 1 kilogramme should not be less than 2 years’ imprisonment.

Following that approach, I would enhance the starting point in the present case by 2 years for the international element, resulting in an enhanced starting point of 25 years and 3 months’ imprisonment.

To that I would give a full one-third discount for the defendant’s 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 42% from the starting point of 25 years and 3 months’ imprisonment.

Accordingly, the defendant is sentenced to 14 years and 7 months’ imprisonment on Charge 1.

On Charge 2, I would adopt a starting point of 6 months’ imprisonment. Giving a 42% discount, the defendant is sentenced to 14 weeks’ imprisonment on Charge 2.

Finally, stepping back and taking into account the totality principle, I do not think the defendant should be further punished for Charge 2 on top of her sentence for Charge 1.

Accordingly, the sentence on Charge 2 is ordered to run wholly concurrently with the sentence on Charge 1.

The total sentence is therefore 14 years and 7 months’ imprisonment.