HKSAR v. Wan Lau-mei

DCCC 414/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 414 OF 2009

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 1.03 grammes of ice and 12.67 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. 

2.In summary in the early evening of the 9th February this year the police were carrying out anti-dangerous drugs duties when they entered Room 9, 1/F, Block D of Pik Wah Building in Yau Ma Tei.  The defendant was found inside sitting on the sofa, where the police found a large transparent resealable bag containing the ice and 56 smaller transparent resealable bags containing the cocaine.  In a drawer on top of a bed the police found a bundle of empty transparent resealable bags, seven rolls of adhesive tape and HK$90,000.  The police also found an electronic scale and a pair of scissors, both of which contained traces of cocaine. 

3.The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v LAU Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes is between 5 and 8 years imprisonment.

4.In Attorney General v CHING Kwok-hung [1991] 2 HKLR 125 the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment and between 10 and 70 grammes the sentence should range between 7 to 10 years imprisonment.   In HKSAR v CAPITANIA Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes in the first band was a typographical mistake and should read 10 grammes. 

5.Following these guidelines the proper starting points after trial taking the different drugs individually would be 5 years and 3 months imprisonment for the cocaine and 3 years imprisonment for the ice. 

6.Mr Francis submits on behalf of the defendant that I should adopt the combined approach to sentence.  Although the guidelines for the two drugs are different the Court of Appeal in HKSAR v CHENG Yat-ming CACC 455/2006 said that where drugs of a comparable kind such as heroin, cocaine and ice are being trafficked the combined approach can usually be used.  Whichever approach is adopted the court must give proper regard to totality.  I am satisfied an overall starting point for the two drugs of 5 years and 6months imprisonment is appropriate.

7.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Francis.  Under caution the defendant said the cocaine was purchased for her own consumption.  Today having taken instructions from the defendant Mr Francis informs the court that the defendant would have consumed a relatively small amount of the cocaine and ice.  Taking into account the defendant has a history of drug addiction, having been to the DATC in 2007, I am prepared to accept a small quantity of the drugs was for her own consumption. 

8.In deciding how much weight should be attached to the fact some of the drugs found in the flat were for the defendant’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  I am satisfied this makes only slight difference to the sentence to be imposed. 

9.Taking into account part was for the defendant’s own consumption I reduce the starting point to one of 5 years imprisonment.  Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 3 years and 4 months imprisonment.