HKSAR v. Cheung Ka Lai

DCCC 1183/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1183 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Inhaling a dangerous drug" (Charge 1) and a charge of "Failing to surrender to custody without reasonable cause" (Charge 2).

Summary of Facts

2.About 4:05 p.m. on 14 October 2015, police officers entered the premises particularized in Charge 1 ("the Flat").  Upon entry, they found the defendant sitting in the bedroom.

3.The Flat was searched and various types of dangerous drugs and consumption paraphernalia were found at various locations in the Flat.  A piece of paper with the words "A B C 390 190 110 on sale" written on it was found on the wall.

4.Under caution, the defendant admitted that she bought some heroin at $110 and inhaled it in the Flat.  This is Charge 1.

5.The defendant was granted court bail in relation to Charge 1, but failed to appear in court without reasonable cause on 10 December 2015.  She was re-arrested on 10 November 2016.  This is Charge 2.

Mitigation & Sentence

6.The defendant is 36 and has 7 children (4 of them have been adopted by separate families; whereas the remaining 3 are adults).  She has 11 conviction records, which included 4 drug-related offences.  Defence solicitor Mr. LEE informed me that the defendant has been separated from her boyfriend for about 10 years.  She was working as a shop attendant earing $10,000 per month. 

7.In mitigation, Mr. LEE submitted that the defendant was re-arrested for the present offences when she was arrested for a gambling offence in November 2016.  She remained at large for almost a year because she was afraid of facing the consequences.

8.DATC Report revealed that the defendant is a drug dependant but a DATC Order is not recommended due to her long addiction history, repeated failures in drug addiction treatment and repeated involvement in criminal activities.

9.In view of the defendant's past history of drug-related offences, a deterrent element in her sentence is required.  For Charge 1, I adopt a starting point of 9 months' imprisonment.  With the guilty plea, I sentence her to 6 months' imprisonment for this charge.

10.For Charge 2, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[1]. The defendant had absconded for 11 months.  Being afraid of facing the consequences of her crimes is plainly not a reason for not attending court.

11.In HKSAR v WONG Chi Hung CACC 300/2010 (unreported Chinese judgment), the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  I adopt a starting point of 4.5 months' imprisonment.  With the guilty plea, I sentence the defendant to 3 months' imprisonment for Charge 2.

Total Prison Term

12.Charges 1 and 2 are separate and distinct. Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1.  The total of prison term for both charges is 9 months.