HKSAR v. Hui Ka Wai

DCCC 1169/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1169 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug. At the request of the Defence and with the consent of the Prosecution, I adjourned the sentence in order for the Prosecution and the Defence to discuss matters which might have an impact on the sentence. However, no fruitful result has been yielded from their discussions. Despite the possibility of further development from their ongoing discussions, I have been asked by the Defence to proceed to sentence the defendant. The Prosecution has no objection to this.

Facts

2.At about 11 pm on 13 September 2016, a customs officer CO98368 intercepted the defendant, who was leaving Hong Kong for Macau and going through the customs clearance at the Customs Departure Hall, Hong Kong Macau Ferry Terminal, Sheung Wan.  A test was conducted on the defendant’s personal belongings and showed a positive result to cocaine.

3.A search was then conducted on the defendant and a cigarette box was found from the right side pocket of her shorts.  Inside the cigarette box were two transparent resealable plastic bags containing a total of 34 smaller resealable plastic bags containing a suspected dangerous drug, later confirmed to be a total of 16.47 grammes of a solid containing 15.35 grammes of cocaine.

4.The defendant was arrested and cautioned for the present offence.  Under caution, she stated, inter alia, that she picked up the cigarette box from a female toilet in the Olympian City without checking the contents therein and denied knowledge of the same.

5.At a subsequent video recorded interview, she stated, inter alia, that (i) on the material day she returned to Hong Kong from Macau at about 7 pm and went to the Olympian City for a meal and to find a male to get the cigarette box; (ii) she got in touch with the Male (appeared as “O Hoi Shing” in her call records) over the phone; (iii) she believed that the substance contained in the transparent bags inside the cigarette box should be “K”; (iv) the male handed the cigarette box to her without telling her what was inside it and simply told her to leave; (v) she put it into the right pocket of her shorts without opening it; (vi) she then went to Hong Kong Macau Ferry Terminal to take a ferry to Macau and would give the cigarette box to a male (appeared as Chiu Woon Sau in her call records) in Macau for a reward of $2,000; (vii) she had been unemployed for around a month.  She was living on her own savings and owed debts; (viii) she had been a drug addict for 8 years.

6.The estimated street value of the subject cocaine was HK$18,298.

7.At the material time, the defendant possessed the cocaine involved in this case for the purpose of trafficking.

Criminal record

8.The defendant has no previous criminal conviction.

Mitigation

9.The defendant, aged 26, was born in China and migrated to Hong Kong at the age of 3.  She received secondary education.  She has separated from her husband.  She used to work as a salesperson and in the catering industry earning around $12,000 per month.  She has been unemployed since November 2015.

10.She has two sisters.  Her parents separated about three years ago.  She lived with her mother and younger sister in a public housing estate unit.  Her younger sister suffers from minor autism and requires extensive care of the mother.  The other sister is married and living apart.  She used to make a financial contribution of $2,000 per month to her mother when in employment. 

11.She committed the present offence in order to earn easy money to repay her debts and sustain her living.  She is remorseful for what she did. 

12.A mitigation letter written by the defendant was also submitted in mitigation.

13.Mr Lau has also confirmed that the court is not required to consider the issue of the subject drugs for own consumption as the defendant is not making any claim in this regard.

Sentence

14.A background report was called for before sentence.  The contents of which are basically consistent with the mitigation put forward by the Defence.  As revealed in the report, her family will continue to support her rehabilitation.

15.I have carefully considered everything said on behalf of the defendant by Mr Lau in mitigation.

16.The sentence upon conviction after trial for trafficking in cocaine between 10 and 50 grammes is between 5 and 8 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in 15.35 grammes of cocainewill therefore attract a starting point of about 65 months’ imprisonment.

17.I note that the defendant is a first offender. I am prepared to deal with her leniently by reducing the starting point by two months to 63 months.

18.Apart from her guilty plea, I don’t find other mitigating factors which justify any further reduction.  Giving a full one third discount to the defendant for her guilty plea, I sentence her to a term of 42 months’ imprisonment.