HKSAR v. Li Ka Yee

HCCC 400/2017

[2018] HKCFI 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 400 OF 2017

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

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COURT:

The defendant, Li Ka-yee, was charged with two counts of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts disclose that on 19 December 2016 the defendant was intercepted by police in Sham Shui Po, and upon search, four bags containing what was later confirmed to be a total of 60.8 grammes of cocaine was found inside her waist bag. The defendant was arrested, and under caution she said she trafficked in the dangerous drug because she wanted to earn some quick money before Christmas. The defendant also owned up that she had more coke at her home upstairs, and asked for a chance.

A home search was conducted with the defendant’s consent. In a luggage, a toolbox containing 248 bags of what later confirmed to be a total of 53.73 grammes of cocaine were found. These packets were separated into eight groups; five bags containing 0.62 grammes; 55 bags containing 7.15 grammes; 30 bags containing 4.37 grammes; 73 bags containing 8.58 grammes; 45 bags containing 5.85 grammes; 38 bags containing 5.17 grammes; one bag containing 6.19 grammes; and one bag containing 15.8 grammes. There were also a large number of empty plastic bags and an electronic scale in the luggage. Under caution, the defendant, again, said she trafficked the dangerous drug to earn quick money, and asked for a chance.

The estimated retail value of the cocaine found amounts to $184,811.

Background and Mitigation

The defendant is 33 years of age; she is not a first offender, having got six previous convictions. Most of her convictions were for theft, and she had been sentenced to a probation order, training centre order, and imprisonment. This is the first time the defendant is convicted with offences relating to dangerous drugs. Mr Hanif Mughal, mitigating on behalf of the defendant, frankly admitted that the main mitigation he could advance for the defendant is her plea at the earliest -- at the first opportunity.

I was informed that the defendant committed the present offence due to financial difficulties; out of stupidity and greed to make easy money, she committed these serious offences. I was informed the defendant is remorseful of what she had done and has started to improve herself while in custody. Two certificates showing that the defendant has completed certain courses were shown to me. I was also informed the defendant has taken up religion and has become a Christian. The pastor of the Christian Prison Pastoral Association Limited wrote on behalf of the defendant asking for leniency. The defendant herself, her father, her two sisters, all wrote to me asking for leniency.

I was also informed that the defendant has successfully registered with the Department of Health to donate all useable organs in case of her death. The defendant worked in a pet shop for four years prior to her incarceration, and her employer also wrote on her behalf asking for a chance. Finally, a group of people in a Facebook group also wrote to me, saying how the defendant helped them to purchase food for their pets, which was rather difficult to get, and that the defendant did not charge them extra or make a profit out of it. They also asked for leniency on behalf of the defendant.

Now, for the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In the case of Attorney General v Pedro Nel Rojas, it was held that the sentencing guidelines laid in R v Lau Tak Ming should apply for the trafficking of cocaine. The Court of Appeal in the case of R v Chang Chen Liu Sa and HKSAR v Hong Chang Chi confirms such an approach.

In the circumstances of the present case, where both offences were committed on the same day, and the facts were closely linked in that the dangerous drug in Count 1 was obviously connected with the dangerous drug in Count 2, the proper approach is to have regard to the total amount of dangerous drug in both counts so as to arrive at an overall starting point. The authority for that is HKSAR v Chow Yu Chi, HKSAR v Cheung Kwok Leung, and HKSAR v Wong To, about this approach of overall amount.

The cocaine involved here was 114.53 grammes. According to the guidelines, trafficking between 50 to 200 grammes of cocaine, the starting point is one between 8 to 12 years. The quantity of 114.53 grammes is around the middle of this band. Having considered the facts of this case, in particular the number, or the vast number of packets containing various quantities, I am of the view that a starting point of 10 years is appropriate in this case, for a first offender. Although the defendant has previous convictions, she does not have any drug related record. I will not enhance this starting point in view of her previous convictions.

The defendant pleaded guilty at the committal stage and is entitled to a full one-third discount. With a one-third discount, a sentence for both counts should be one of 6 years and 8 months’ imprisonment. As the defendant successfully registered to donate all her useable organs, that is, well before the commission of the present offences, and from what was said about her kind deeds by the Facebook group, I treat the defendant as one of positive good character even though the defendant had committed offences before.

I will give the defendant an extra discount of 2 months, so for the 1st count, the sentence is 6 years and 6 months’ imprisonment. For the 2nd count, also 6 years and 6 months’ imprisonment. Both sentences to run concurrently, making a total of 6 years and 6 months’ imprisonment.