HKSAR v. Mok Siu Ling Kiki

DCCC181/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 181 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Drugs Ordinance, Cap.134.

2.The particulars of the offence; the defendant was arrested on the 9 December 2010 on arrival at immigration returning to Hong Kong from Mainland China.

3.A quantity of “Ice” was found in the hood of the defendant’s jacket, namely 7.58 grammes of a crystalline solid containing 7.24 grammes of “Ice”.  The street value in Hong Kong of this quantity of “Ice” was $900 at the time.

4.The defendant had left Hong Kong, three hours prior to her arrest.  The definition and interpretation of trafficking in dangerous drug includes importing dangerous drugs into Hong Kong, which is what the defendant admitted she has done.

5.In mitigation, it was submitted she was a habitual “Ice” user and that this quantity of “Ice” was for her own consumption.  Therefore an inquiry was held and the defendant elected to give evidence.

6.I summaries her evidence as follows;  

The quantity that she purchased in Mainland China, would have cost her about $3,000 in Hong Kong. She uses “Ice” habitually and regularly on almost a daily basis, taking approximately half a gramme a day by inhalation. A friend had told her to contact a male called “Ah Fai” in Shenzhen, where she could obtain dangerous drugs from this man. She did just that having his mobile phone contact number and ultimately paid $700 for this amount.

She had been taking “Ice” almost continuously for six to seven odd-years before her arrest. Once in remand she did suffer withdrawal symptoms of exhaustion and an increased appetite but did not need any medical attention nor receive any. She was tested for dangerous drugs upon her remand and she tested positive for “Ice”.

I will set out relevant factors in accepting her evidence and submission. Firstly, the drugs here were not a huge amount of drugs nor was the value very high. More importantly, the defendant could afford this amount of money.

Secondly, she was caught returning to Hong Kong at immigration. This was not a case where a defendant was arrested on the streets in Hong Kong carrying drugs around with her, risking an arrest and not having a satisfactory explanation. Thirdly, there was nothing to refute her evidence that she tested positive for “Ice” upon her arrest.

7.I accepted on a balance of probability that she was a habitual “Ice” user and it is a possible that she bought the “Ice” for her own use.  I have then gone on to consider the defendant’s background, mitigation and previous convictions; one of which is related to possession of dangerous drugs for which she received a fine.

8.I have also considered the guidelines where trafficking “Ice” is concerned in particular, the authority of the AG v Ching Kwok Hung [1991] 2 HKLR 125.  In particular, the relevant guideline is where “Ice” is up to 10 grammes the appropriate sentence would be between 3 to 7 years’ imprisonment.       

9.I have considered the authority produced by the defendant, SJ v Chan Chun Fai CAAR11/2010.  It sets out the appropriate approach for cases where trafficking in dangerous drugs is proved but it is also accepted the dangerous drugs was wholly or partly for the defendant’s own consumption.

10.Self-consumption goes to mitigation but does not detracted from the nature of the offence and the defendant should be sentenced for the offence of trafficking in dangerous drugs.  If a court addresses and accepts a submission that the drugs were wholly as in this case for defendant’s own consumption, what this will do is entitle the defendant to a lower starting point.  This authority refers to several other similar authorities for guidance.

11.Having considered all the above factors, the authorities and the quantity of dangerous drugs here, I will take a starting point of 5 years and 4 months.  As I have accepted the dangerous drugs ultimately were for your own consumption I will reduce the starting point by 25 percent.

That would mean a lower starting point of 4 years’ imprisonment. As you have pleaded guilty, you are entitled to a discount of one-third, that will be a further discount to 16 months’ imprisonment.

12.Ultimately you are sentenced for this offence to 2 years and 8 months.