HKSAR v. Lai Ka Yan

DCCC417/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 417 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs.

2.The particulars of the offence are that on 4 March 2010 outside the Community Centre in Tsui Lam Estate, she unlawfully trafficked in 59.1 grammes of ketamine.

3.The facts admitted by the defendant are that on

4.Shortly after 7 o’clock on the same day, PW1 saw the defendant acting furtively outside the Community Centre.  She was intercepted and on search inside the defendant’s handbag, a lai-see packet was found containing four packets of suspected dangerous drugs which turned out to be the drugs the subject to the charge.  She said, “Ah Sir, I am helping somebody to deliver the K Chai to others.  Please give me a chance.”

5.In a recorded interview she said that on 4 March in the afternoon, she met somebody called Ah Shing in Sham Shui Po.  She was in need of money and agreed to deliver a lai-see packet which contained ketamine. The defendant was to collect $3,500 from the person who received the drugs, she would contact Ah Shing and she would keep $1,000 as a reward.  She said she placed the drugs in her handbag and went to the Tsui Lam Community Centre where she was intercepted by the police.

6.The defendant does not have a clear record.  On 30 April last year for theft she was placed on probation for a period of 12 months.

7.In mitigation it was urged upon me that the defendant is single and presently resides at an address in the Kwai Fong Estate in Kwai Chung with her family.  There are three daughters and one son in the family, and the defendant is the second daughter.  She is studying Form 5 in a secondary school in Tsuen Wan, or she was at the time of the offence.  During the holidays she worked as a salesperson.

8.The defendant’s father is aged 50.  He is the family’s main breadwinner and works as a security guard earning $6,300 per month.  Her mother, Lo So-heung(?), aged 48, is a housewife and works part-time, earning a monthly average of about $3,000 to support the family. She has an elder sister aged 20, who moved out of the family and is working as a waitress earning $7,000 per month.

9.I am told that the defendant grow up in a grassroots family in which the parents received only primary school education and seldom supervised the defendant, and the defendant was mostly influenced by her peer groups.  Due to her immaturity and the influence of friends, the defendant admitted she was curious about drugs and tried ketamine previously, but she was not a drug addict.  Having been brought up in a low-income family, the defendant always ran out of money and it was under the allurement of money that she committed the offence.

10.In relation to her record, I was told the defendant started to commit criminal offences in February 2006 when she was 13.  She committed two counts of theft, in 2006 and 2009, and both were shoplifting matters.  She was given a superintendent’s discretion on the first and probation on the second.

11.It was urged upon me that the defendant pleaded guilty at an early stage.

12.Mitigation letters have been placed before the court and one has come from the defendant.  She says that she regrets the current offence, now recognises the seriousness of her position, says that she used to be a vulnerable person, easily influenced by her peer group and allured by money, and she now realises that her family is the best and still gives her support despite her wrongdoing.  She asks for a lighter sentence.

13.The letter from her mother states that she has been suffering from psychiatric diseases and insomnia since 2002 and is now receiving therapy.  This problem has affected her supervision of the children and she is ashamed of how little care she has given the defendant in the past. She describes the defendant as being kind-hearted, tame, silent and keen to assist in doing household chores.  She says the defendant gets an average school result and she hopes for a light sentence. 

14.The defendant’s father says that he is a chef in a restaurant.  Unfortunately he was injured during work in 2004 which caused him to stop work.  As a result, he was under great financial pressure and looked for assistance from social workers and needed consultation from psychiatric practitioners.  His family now lives on low income from his wife and government subsidies.  He says he was emotionally depressed and seldom supervised the children.

15.In 2007 he found a new job as a security guard, and due to long working hours and from fearing to lose his job, he put most effort into the job and seldom supervised his children.  He feels sad and guilty and ashamed of himself for not having taken proper care of the child, and asks for a sympathetic sentence.

16.I adjourned the case on the last occasion so that I could have the advantage of a background report.  Much of what has been said in mitigation is repeated in that report.

17.It states that the accused was brought back to Hong Kong to study Form 1 when her mother was granted a single-way permit, and this was to have reunion with her father.  Her parents' supervision and discipline on the children were limited.

18.The defendant appeared not to have exhibited misbehaviour throughout her primary school years but after entering secondary school, without the least motivation in her studies, her academic performances were very poor and she also showed frequent violation of the school rules.  Under the vice influence she smoked and tasted soft drugs when she was in

19.She has a playful personality and, being highly susceptible to peer influence, she liked engaging in fun-seeking activities, hanging around in cybercafés, parks and idling in her friends' places.  She had often returned home late at night.

20.Her parents have seriously exhorted her and even used corporal punishment to discipline her, especially when she was found to have thievish behaviour.  She showed a bit of improvement, especially after being cautioned by the police and put on probation, but her progress was not maintained steadily.  She turned a deaf ear to her parents and failed to keep a good curfew record when being under probation supervision.

21.Her commission of the current offence reflected her greediness and motive of earning fast money without consequential thinking, also her affiliation with other peers, weak self-will to resist temptation, and has a poor law-abiding concept.

22.The report states that she appeared to have learnt a bitter lesson after being arrested and remanded.  Having understood the gravity of the current offence, she was worried about the long-term incarceration.  Out of parental affection, her parents earnestly sought clemency.

23.The offence was committed by the defendant towards the end of her probation period.

24.The offence is a serious offence.  The courts recognise that ketamine abuse is a major problem in Hong Kong.  Young people are used to distribute it.  The message has to go out that if they are caught, they will face serious imprisonment.  17 is not a very young age.

25.The band of sentencing for the amount of drugs found in possession of this defendant is 6 to 9 years.  Nothing has been said to me that would indicate that this is a rare case where I should depart from the guidelines.

26.The band for the 6 to 9 years starts at 50 and goes up to 300 grammes of drugs.  The amount of drugs in possession of the defendant is 59.1 grammes.  That would indicate a starting point of 6 years. The only mitigation in this case is the defendant’s guilty plea.

27.The sentence I impose is one of 4 years' imprisonment.