HKSAR v. Li Oi Yee

DCCC453/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 453 OF 2010

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Reasons for Sentence

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1.Defendant, you have been convicted after trial of a single count of attempting to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 and section 159G of the Crimes Ordinance, Cap.200.

2.As I said in my reasons for verdict, the unusual nature of this offence is that what was contained in the 3 packets found in your handbag did not contain any substance controlled under the Dangerous Drugs Ordinance.  Indeed the government chemist certificate, Exhibit P14, gives no clue as to what the substance was, only that it was a solid which did not contain any drugs.

3.You thought that this was “Ice” and I have found that you had this in your possession for the purposes of unlawful trafficking.

4.If what you told the police in your record of interview is true, that is, that you bought this quantity of substance believing it to be “Ice” for $13,600, then you have been duped.  Whilst I cannot dismiss your story to the police in this regard as being untrue as there is nothing to suggest otherwise, I merely make the point that a public assistance recipient spending this sort of money on drugs is a little surprising. 

5.Be that as it may, I can tell you that had you actually been convicted of trafficking in 39.5 grammes of “Ice”, you would most certainly not be in this court, rather the High Court, facing a sentence of between 8 and 8½ years’ imprisonment according to the present guidelines. 

6.I do not find the current sentencing guidelines for trafficking in “Ice” helpful in the circumstances of the present case because you were not actually trafficking in drugs.  Neither do I find any assistance from the two cases submitted on your behalf by your counsel.

7.The first case, R v Lee Wing Chun, Criminal Appeal No. 925 of 1982, involves a case where the defendant was purporting to sell as a dangerous drug a substance that he knew was nothing of the kind.  There is no evidence of this in the present case.  The second case, HKSAR v Yim Wai Yin and another, Criminal Appeal No. 8 of 2003, deals with sentencing where there is a mistake in the nature of the drugs that are being trafficked.  Again this is distinguishable from the present case. 

8.Whilst you were not trafficking in “Ice”, the gravamen of this offence is that you intended to and in a significant quantity.  Clearly, a deterrent sentence is necessary.  You will go to prison for 4 years.

Appeal against sentence is dismissed. See CACC362/2011 dated 2 November 2011