HKSAR v. Au Ka Sin, Joey

DCCC 845/2014

[2019] HKDC 1411

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 845 OF 2014

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Reasons for Sentence

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Charges

1.D pleads guilty to trafficking in dangerous drugs (Charge 1) and failing to surrender to custody without reasonable cause (Charge 2).

Facts for Charge 1

2.On 16th July 2014 at about 4:40 p.m., PC3685 (PW1) was patrolling outside Sai Ching Street Children's Playground, Sai Ching Street, Yuen Long.  He noticed D standing on the pavement and kept looking around.  Finding her suspicious, PW1 therefore intercepted her. 

3.Upon a search of the handbag she was carrying, there were found two mobile phones and a small pouch containing the following:

(i) 2 re-sealable plastic bags containing a total of 7.40 grammes of a crystalline solid containing 7.32 grammes of methamphetamine hydrochloride or “Ice” (Exhibit 1);

(ii) 2 re-sealable plastic bags containing a total of 1.55 grammes of a crystalline solid containing 1.54 grammes of Ice (Exhibit 2);

(iii) one re-sealable plastic bag containing 1.44 grammes of a powder containing 0.59 grammes of ketamine (Exhibit 3);

(iv) one re-sealable plastic bag containing 6 small empty re-sealable plastic bags.

4.D was arrested and cautioned. At the time of the arrest, she was about 3-month pregnant. 

5.The street value of Exhibits 1 and 2 is about $4,010. The street value of Exhibit 3 is about $181.

6.At all material times, D possessed Exhibits 1 – 3 for the purpose of unlawful trafficking.

Facts for Charge 2

7.On 17 October 2014, D was granted bail in the District Court and was directed to attend trial on 16 March 2015.  On 16 March 2015, she did not attend trial or could she be located.  On 3 March 2019, she was arrested upon being found in a Yuen Long amusement game centre.

Mitigation

8.D is 40 years of age.  She had studied up to second year in the university.  She was a mobile phone saleslady at the time of present arrest.  She had 2 records for possession of dangerous drugs resulting in probation in 2007 or DATC in 2013, as the case may be.  She had no trafficking record.  It is claimed in mitigation that she had persistently worked as the saleslady of a boutique between June 2015 and March 2019.  She is now the mother of 3 children.  She is in a steady relationship with her boyfriend.  

Sentencing considerations

9.Traffickers of up to 10 g of Ice shall face 3 to 7 years' imprisonment as the starting point(A.G. v Ching Kwok-hung [1991] 2 HKLR 125).  Our present case features 8.86 grammes of Ice.

10.Traffickers of up to 1 gramme of ketamine shall be sentenced at the discretion of the court (SJ v Hii Siew Cheng [2007] 1 HKLRD 1).  Our present case features 0.59 gramme of ketamine.

11.In HKSAR v Lo Kam-fai [2016] 2 HKLRD 308, a judgment dated 2 February 2016, the Court of Appeal stated that the usual discount for a guilty plea tendered by a defendant who had absconded in the same proceedings shall be about 20 – 25%. The rationale behind was that the absconding defendant had delayed the legal proceedings.

12.In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, a judgment dated 2 September 2016, Lunn VP made the observations that the one-third conventional discount shall no longer be applicable after the case was fixed for trial.  Depending on the actual timing of the indication of plea from the trial date, the discount shall be between 20 – 25%.   

13.Miss Chong contends that D had absconded in March 2015, a date which I take to be before both said cases were decided.  As such, D should not be affected by their implications.  I accept this to be the correct way to put the matter.  

Sentencing D

14.Using the Combined Approach, I take 6 years 3 months (ie 75 months) as the starting point for Charge 1.  I give her a one-third discount for her guilty plea.  The sentence is 4 years 2 months (ie 50 months) for Charge 1. 

15.I take 6 months as the starting point for Charge 2.  I give her a one-third discount for her guilty plea.  It is said that while absconding for 4 years, she had managed to settle down in her family and her job.  However, I regard such borrowed time the windfall from her unlawful manipulation of the legal proceedings.  She cannot take advantage of her own wrong.  I do not consider her presently having a stable family or job a mitigating factor.  The sentence here is 4 months.

16.The Charge 2 sentence ought to be consecutive to the Charge 1 sentence.  The total is 4 years 6 months (ie 54 months).