HKSAR v. Lee Daphne Veronica

DCCC 82/2022

[2023] HKDC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 82 OF 2022

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REASONS FOR SENTENCE

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1.Ms Lee pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that she, on 2 August 2021, on a taxi bearing registration mark JT9299, near the junction of Kansu Street and Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 8.11 grammes of a solid containing 7.1 grammes of cocaine.

Facts admitted by Ms Lee

2.On 2 August 2021, at around 0017 hours, in Yau Ma Tei, a taxi with Ms Lee seated at a rear passenger seat stopped at a traffic light. A patrolling police constable found Ms Lee acting suspiciously. He therefore approached the taxi and opened the rear passenger door.

3.When the taxi door opened, Ms Lee discarded a transparent resealable plastic bag containing 5 other transparent resealable plastic bags (E1)  containing 0.75 gramme of a solid containing 0.68 gramme of cocaine onto the rear passenger seat.

4.At the same time, Ms Lee also discarded with her other hand a grey bag which was found to contain a transparent resealable plastic bag containing 39 transparent resealable plastic bags (E2)  containing 7.36 grammes of a solid containing 6.42 grammes of cocaine.

5.Ms Lee was arrested. Under caution, Ms Lee said the “coke” was for her own consumption and asked for a chance. She was found to be in possession of two mobile phones and cash of $3,101.

6.During a cautioned VRI, Ms Lee stated:-

(a)  The “coke” she talked about meant cocaine;

(b)  Before getting on the taxi, she met a friend “Ho Jai” at Kowloon Park who sold her the said cocaine for $6,000;

(c)  She discarded E1 when she noticed the presence of police; and

(d)  The said two mobile phones belonged to her.

7.The said two mobile phones were later examined by the Cyber Security and Technology Crime Bureau. There were found in them various photographs showing some transparent resealable plastic bags containing a white substance, an electronic scale, as well as some transparent resealable plastic bags containing a white substance being put on an electronic scale for weighing. There were also some suspicious WhatsApp conversations showing Ms Lee appeared to be purchasing drugs from someone.

8.The total estimated street value of the cocaine in this case was about $10,202.

9.Ms Lee now admits she was in possession of the cocaine in this case for the purpose of unlawful trafficking.

Criminal record

10.Ms Lee has one previous similar conviction in 2010 for which she was sentenced to detention in a Training Centre.

Antecedents

11.Ms Lee was born in the US and is aged 30 (28 at the time of the offence). She was educated to secondary 3 level, a freelance warehouse worker at the time of arrest. She lived with her ex-girlfriend without a fixed place of abode.

Mitigation

12.Ms Yasmine Zahir of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Lee. The following is a summary of the mitigation submissions.

13.Ms Lee was born in the US and moved to Canada. She returned to Hong Kong with her family when she was a primary school student. She was educated to F3 level in Hong Kong. She is a Hong Kong permanent resident. After leaving school, she began working and lived away from family with her friends.

14.Ms Lee’s family members are all in Hong Kong. Her father is in his 70s while her mother (present in court)  is 62 years old. Ms Lee has 3 elder sisters. In her formative years, her relationship with family was distant. When she was 13-14 years old, she inadvertently learnt that her parents were already divorced. This led to her rebellious behavior throughout her teens.

15.Prior to detention, Ms Lee was working as a freelance warehouse worker earning a daily wage of $500 and she would work 20 to 25 days a month. She had been working for 6 months at this job prior to arrest. Previously, Ms Lee worked as a hairdresser apprentice for 3 years; she wished to become a professional hairdresser one day.

16.With reference to the sentencing guidelines for cocaine, for trafficking in up to 10 grammes of the drug, a sentence of 2 to 5 years would be warranted. The court is invited to consider that the quantity of drug in the present case is not the worst of its kind and there were no other drugs involved.

17.The defence’s position is that the drug was (at least substantially)  for Ms Lee’s self-consumption: Ms Lee bumped into her friend “Ho Jai” when she was walking down Haiphong Road on the arrest date; “Ho Jai” said he needed money; as Ms Lee was a habitual cocaine user, she bought the cocaine “Ho Jai” had for $6,000; when she was in the taxi, she was heading to Mongkok for consumption of the drug. If the court accepts the defence’s position, this constitutes a mitigating factor: HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, 1125, at para 14.

18.In light of the considerations identified in HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, 79, the court is invited to consider:-

(a)  Ms Lee explained under caution both at scene and during VRI that the drug was for her own self-consumption;

(b)  The drug was bought at a much lower value than the estimated street value; and

(c)  Her urine test report showed she was positive for cocaine.

19.With reference to Chow Chun Sang para 19 at 1126, the court is invited to consider – in assessing the extent of discount – the transaction was not premeditated and Ms Lee was not motivated by financial gain.

20.Ms Lee has one previous similar conviction in 2010 for which she was sentenced to Training Centre detention.

21.While Ms Lee was on remand for the present case, she has completed two distance-learning courses with CUHK.

22.Ms Lee pleaded guilty at the earliest opportunity and she is remorseful. In view of the mitigating circumstances, defence urges the court to grant a lenient sentence.

23.Defence submitted two mitigation letters in Chinese written respectively by Ms Lee and her mother. The contents are generally that Ms Lee is determined to part way with her past lifestyle. Both writers ask for a chance and a lenient sentence for Ms Lee.

24.When reminded by the court that the drug found was conveniently separated into two parts, consisting of 5 plastic bags (E1)  of the one part, and 39 plastic bags (E2)  of the other part, and that the court would not accept E2 was for Ms Lee’s self-consumption without evidence from her, defence took instructions and replied that Ms Lee would not be giving evidence to substantiate her claim that most of the drug was for her self-consumption.

Sentence

25.Trafficking in a dangerous drug is a serious offence.

26.An arithmetical assessment as per the sentencing guidelines applicable to cocaine yields a starting point of 49.5 months’ imprisonment. I see no reason to depart from this figure and this is the starting point I adopt in the case of Ms Lee subject to the claim of self-consumption.

27.I have considered Ms Lee’s claim that most of the drug was for her self-consumption. I have referred to the case of HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 and to the factors that a sentencing court should consider when considering such a claim, namely factors that were earlier stipulated in the cases of Wong Suet Hau and Chow Chun Sang (supra)  and recited in Liu Ming Sze. I conclude that I would accept that E1 containing 0.68 gramme of cocaine (ie 9.6% of the total quantity)  was for self-consumption but I would not accept the submission (on a balance of probabilities)  that most of the drug found was for self-consumption.

28.According to Liu Ming Sze, at para 28, even when the proportion of drug that is accepted by a court to be for the purpose of self-consumption reaches the figure of 10%, that does not fall to be regarded as a “significant proportion”; and as such, the range of discount set out in Chow Chun Sang would not be relevant.

29.Ms Lee pleaded guilty in good time earning for herself a 1/3 discount. There are no other mitigating factors that would justify a further reduction of the sentence.

(Ms Lee, please stand)

30.The sentence is therefore 33 months’ imprisonment.