HKSAR v. Lai Hei Suet

DCCC 1181/2022

[2023] HKDC 1794

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1181 OF 2022

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REASONS FOR SENTENCE

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1.The defendant faces and has pleaded guilty to one charge of trafficking in a dangerous drug.

2.The particulars of the offence are that on 31 August 2022 at a footbridge in Yuen Long, the defendant unlawfully trafficked in a narcotic content of 11.92 grammes of heroin hydrochloride.  The defendant has entered a plea of guilty and has accepted the facts and I convicted her of that offence.

3.The facts are very simple.  The defendant was stopped in the morning of 31 August 2022 by patrolling police officers in the Yuen Long area.  She was searched and a packet of drugs was recovered from her.  The packet in fact contained various other bags and contained totally 100 straw packets of the drug.  The estimated street value of the drugs being $13,261.

4.At the time the defendant was arrested and cautioned, she did say that she was assisting someone to convey the stuff, obviously meaning the drug, for $300.

5.The defendant’s background is that she is aged, I think she is now, 47. She has previous convictions for dangerous drug offences on eight previous occasions related to the possession of dangerous drugs.  She has been sentenced largely to a Drug Addiction Treatment Centre but also received a sentence of 6 months’ imprisonment on 2 November 2021 for the offence of possession of a dangerous drug.  She has no previous convictions for trafficking in a dangerous drug.

6.She has entered a plea of guilty to these charges and indicated her acceptance of responsibility in this matter from an early stage.

7.I note that the Court of Appeal, in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, has set out the step approach to determining sentencing in cases such as this and that involves clearly at the first stage identifying the relevant guideline band applicable for the quantity of drug concerned in assessing the defendant’s role and culpability,  then determining where in the band the defendant ought to come, considering the aggravating or mitigating factors and then pass what is a fair sentence in respect of the defendant.

8.The tariff sentence for the trafficking in heroin hydrochloride has been established for quite some time now.  The relevant case is the R v Lau Tak Ming [1992] HKLR 370 and a quantity of between 10 and 50 grammes of the drug will attract a starting sentence of between 5 to 8 years’ imprisonment.

9.The defendant’s role in this case is clearly set out in her own admissions, one of courier, she was taking the drugs from one point to another, so she is at what I call the lowest level of the distribution chain of the drug, so her responsibility on the lowest form.

10.As far as the location within the band – I will deal with that in more detail later – but she clearly with a narcotic content of 11.92 grammes finds herself at the lower or lowest part of the tariff.  So there are no particular aggravating factors.

11.The mitigating factors are clearly her plea of guilty and her acceptance of responsibility for this matter from an early stage.

12.The court determines after consideration of all these factors, that given the quantity of drugs and her role in the matter, the court will take a starting sentence at the lowest end of the tariff, that is one of 5 years or 60 months’ imprisonment.

13.The defendant has no similar convictions although she is obviously a long-term drug user.  She is however entitled to a full one-third discount from the established starting point of what is 60 months’ imprisonment.  That will lead to a sentence of 40 months’ imprisonment.  That is the sentence I will impose on this indictment.