HKSAR v. Leung Ka Ki

HCCC 217/2018

[2018] HKCFI 2699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug; namely, 38.4 grammes of a crystalline solid containing 37.4 grammes of methamphetamine hydrochloride. She has been committed to this court for sentence.

The Summary of Facts are none too unusual. She was observed by police officers at 1745 hours, on 29 May last year, in Tsuen Wan, Shek Wai Kok Estate. She was carrying a black shoulder bag and holding a purple recycle bag in her right hand and seen wandering around the ground floor of Shek To House and finally sitting down.

She was thus searched and inside the recycle bag was found a pouch containing two red packets, each containing one transparent resealable plastic bag containing a total of 38.4 grammes of a crystalline solid containing 37.4 grammes of methamphetamine hydrochloride. Upon arrest and caution the defendant claimed that she bought all the drugs for self-consumption. She said that she had bought the drugs in Mongkok in Langham Place earlier that day for $500 and that she normally consumed 4 to 5 grammes per day at home and she was at Shek Wai Kok Estate, Shek To House, because she was delivering some goods to a customer for her online boutique.

Upon being further interviewed in a video recorded interview she said she was a public relations manager for Universe Entertainment Television Channel 2 and that she had purchased such a large quantity of drugs because it was cheaper. She started taking drugs about 4 to 5 months prior to her arrest because she changed her job and it was very stressful. The estimated retail value of the drugs seized was $11,981.

Now, the defendant is aged 40 and has had three previous convictions for possession of drugs and she had been treated very leniently in the past. Her last conviction was in 2008 when she was given a fine and a suspended sentence. She voluntarily admitted to a drug rehabilitation programme in August 2010 until December 2011. However, she did not stay away from drugs after that and she blames it on the stressful nature of her job.

Well, the problem with the background of the defendant is that it was all too convenient for her to turn to drugs without any willpower to resist. Just because of the nature of the job she willingly fell back into her old habit. That, I gather from the mitigation advanced by Mr Lai.

Mr Lai had sought to convince this court that at least one-third of the drugs were for her self-consumption that day as they were packed into two separate packets; one-third in one packet and about two-thirds in the other. I am informed that she intended to distribute the two-thirds to her friends without making any profit and she was going to retain about one-third for her own self‑consumption. I am asked, therefore, to accept that she will take the one‑third of the drugs for her own self-consumption. Now, the problem with this is that it is very often the case where a defendant buys drugs to distribute to her friends, whether for profit or non‑profit that is still trafficking.

In this case the defendant, according to Mr Lai, did have a very well-paid job in April where she was paid but I notice from the statement, the bank statement, she was not paid on 28 May. I am informed that the defendant alleges that the company owed her a salary payment for May. If that is the case, therefore, the temptation would be great to the latent risk factor, that is, to keep some part of it for her own consumption and if necessary to distribute it to her friends for payment. That is not something unusual as she was already doing it. So I have to take into account the full background. I do accept that she did try to stay away from drugs and did make an effort in 2010 to 2011.

The sentencing guidelines, as Mr Lai has correctly pointed out, is the case of Tam Yi Chun [2014] 4 HKC 297, where the Court of Appeal laid down that for trafficking in between 10 to 70 grammes of ‘Ice’ would merit a starting point sentence of between 7 to 11 years. In this case the total amount is 37.4 grammes which would merit, in my view, a starting point sentence of 9 years.

I do accept that she had pleaded guilty at the earliest opportunity and is therefore entitled to one-third discount and I also accept that part of the drugs were for her self-consumption although it may not be up to the full one-third amount that has been claimed. So in view of all that I have said above, I consider that an appropriate sentence, after deduction, will be 5 years’ imprisonment, so the defendant will go to prison for 5 years.