HKSAR v. Koo Frances Lil

DCCC 275/2019

[2020] HKDC 84

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 275 OF 2019

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant, Ms Koo, has pleaded guilty to a single charge of trafficking in a dangerous drug.

2.The fact are very simple.  The defendant, Ms Koo, was intercepted at the Customs Departure Hall of the China Ferry Terminal at Tsim Sha Tsui.  It appears to me she was headed towards Macau.  She was searched and what is described as a tissue wrapper resealable plastic packet containing white powder and 110 resealable plastic bags containing cocaine were found in her underwear.  The total drugs was 0.18 grammes of ketamine and then 13.61 grammes of cocaine. 

3.She was asked about the drugs found on her.  She said she bought the ketamine in a bar in Hong Kong in Tsim Sha Tsui and was going to consume it herself in a Macau massage centre.  She was also going to carry the cocaine to Macau for a person she knew in a bar and she was going to get $3,000 for that. 

4.The defendant admits she was in possession of the two drugs for the purpose of unlawful trafficking.  It would appear from that admission that she is saying the ketamine was going to be consumed by herself, but the act of taking it through a border would mean that it was trafficking in the drug.

5.As far as the defendant herself is concerned, she is a young lady, 29 years old at the time of the offence.  She has a clear record.  She has an 8-year-old -- I believe she is 8-year-old - daughter, who is taken care of by the natural father of the child and has been cared of by the natural father since the defendant was taken into custody.

6.Prior to her arrest, the defendant was supported by CSSA, Comprehensive Social Security Assistance, and was in receipt of public housing that had been assigned to her.

7.The defendant says that she became involved in the offence to basically get quick money by delivering drugs to Macau, and it occurred at a time when she had what is described as split up with her boyfriend and she was taking ketamine to relieve stress.

8.I am told as part of her mitigation that she has volunteered to work in prison.

9.As far as her mitigation is concerned, she pleads in aid her plea of guilty and also the situation with her daughter.

10.I have a detailed report from Probation Services about the care of the daughter and also the two parents.  I do not propose to go into the details but it is a very helpful report. 

11.Now, since the defendant has been in custody, the natural father has taken the caring role in relation to this child.  The Welfare officer describes the care as adequate, and the father, because he is taking full-time care of the child, is now reliant on CSSA, as the mother was when she took care of the child.  There are school personnel and also relatives who are prepared to monitor the childcare situation and offer help if needed. No long-term decision has been made as to the child’s care in the future. 

12.The Social Welfare officer reflects on the defendant’s consumption of drugs, which is described as a longstanding drug problem, and also reflects on her what is described as poor household management, which has negatively impacted her performance as a mother, and these are factors that have to be taken into account in respect of the long-term care of the child.

13.But the defendant has freely acknowledged her involvement in this offence and considers that she has the capacity to reform herself in relation to her family background, her remorseful attitude and the fact she has a clear record.  She anxiously wishes to be reunited with her daughter and to take care of her, and asks that that factor be reflected in the sentencing of today.

14.Now, I turn to the approach to sentencing by the court.  Both the drugs to which the defendant has admitted trafficking in have guideline sentences.  For the 10 to 50 grammes of cocaine, the sentence should range between 5 to 8 years’ imprisonment. 

15.Here, the quantity of drug is 13.61 grammes of cocaine, so it would appear to be at the lowest point of that guideline, having regard to quantity, and the starting point for that quantity of cocaine would normally be in the region of 60 months’ imprisonment; 5 years.

16.There are also guidelines for trafficking in ketamine.  Having regard to that, the quantity is small and the defendant said the ketamine was in fact for her own consumption.  Given her drug consumption history I have seen in the Welfare report, there is no reason to consider that is untrue.

17.In the circumstances, an offence such as this, I believe I can disregard that quantity when calculating the overall starting point for sentence.

18.The question is whether there are any other aggravating factors that would increase the sentence.

19.The defendant was of course apprehended in the departure hall of the China Ferry Terminal and would have been travelling, as I understand it, to Macau.  So this is the possible aggravating factor of there being what is described as international drug trafficking. 

20.However, the defendant is in fact transiting at the border of administrative regions within one country and, in those circumstances and having regard to the other mitigation of the defendant, I do not propose to increase this sentence for the possible and potential aggravating factor. 

21.As I see it, there are two mitigating factors that I should consider.  The first is the defendant’s plea of guilty, which would entitle her to a one-third discount from any starting point, and the second factor, the one that has concerned me most in this hearing, is the position of the child.

22.The sentencing of what I would call “mothers with young children” is a particular form of sentencing, because it does in fact impact on the child, a child that has a right to a family life and the society of her mother and father.  It is a factor of mitigation in sentencing, particularly in cases with young children and where the mothers are young as well. 

23.The care of the child is adequate, but can only be improved with greater access to the mother, and the court should strive to ensure that separations between young children, especially girls, and their mothers should not be too excessive. 

24.Obviously, one must also bear in mind the defendant has committed a serious offence with a guideline sentence. 

25.I shall approach this case as follows. 

26.I will take a starting point of 60 months’ imprisonment overall for the offence of unlawful trafficking. 

27.I will reduce that 60 months’ starting point having regard to the factors I have related.  That is, the fact that the defendant is the mother of a young child.  I shall reduce the starting point by a further 9 months to reflect that. 

28.From this starting point of 51 months, I will deduct a further one-third to reflect the defendant’s plea of guilty.

29.By my calculation, that leads to a sentence of 34 months’ imprisonment.  It is still a lengthy sentence, but I believe it balances the factors that are important in sentencing for this particular defendant, and that will be my sentence.