HKSAR v. Lo Ka Lee, Kelly

DCCC 865/2022

[2023] HKDC 1683

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 865 OF 2022

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.About 9:50 a.m. on 31 May 2022, PC 25125 (PW1)  stopped the defendant and a male outside Shop 4, Ground Floor, Chungking Mansions, Nos.36-44 Nathan Road, Tsim Sha Tsui for enquiry.  PW1 heard the defendant asking the male in a muttered voice "What to do?"

3.Upon search, PW1 found the following items in the defendant's bulging left trouser pocket :-

(i)  1 transparent resealable plastic bag containing 51 transparent resealable plastic bags which contained a total of 7.84 grammes of a solid containing 6.55 grammes of cocaine; and

(ii)  1 transparent resealable plastic bag containing 12 transparent resealable plastic bags which contained a total of 5.80 grammes of a solid containing 4.74 grammes of cocaine.

4.PW1 arrested the defendant for "trafficking".  Under caution, she said "Ah Sir, I helped someone to carry the 2 bags of cocaine.  Any remainder is for self-consumption.  My boyfriend has nothing to do with this."  PW1 also seized from her $3,300 odd in cash and a mobile phone.

5.In her video recorded interview, the defendant admitted, inter alia, that she helped someone to sell the cocaine.  The amount for self-consumption would depend on how much drugs she could sell on that day.  If business is good and not much left, she would consume less.  She had been trafficking cocaine in this manner every day for about a year.

Mitigation & Sentence

6.The defendant is 39 and has 5 conviction records, which included 4 "simple possession" offences.  Defence counsel Ms. See informed me that at the time of the present offence, the defendant was unemployed and resided with her boyfriend.  She has 2 children (aged 3 and 1); they currently live in foster homes.  In mitigation, Ms. See submitted that the defendant grew up in a broken family.  She picked up her drug habit when she was young.  Ms. See also submitted that the defendant has been remanded in jail custody since her arrest.  She has managed to get rid of her addiction and has attended religious courses.  She plans to become a responsible mother after serving her sentence.

7.Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.

8.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

In the present case, the defendant trafficked in 11.29 grammes of cocaine. Applying a strict arithmetical approach, the appropriate starting point is 5 years and 1 month. Since this is the defendant's first "trafficking" conviction, I adopt a starting point of 5 years for ease of calculation. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 40 months' imprisonment.