HKSAR v. Kwok Siu Yan
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DCCC 867/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 867 OF 2011 ----------------------
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--------------------------- Reasons for Sentence --------------------------- Charge and facts 1.The Defendant pleads guilty to trafficking in 54.79 g of a crystalline solid containing 46.43 g of ketamine. The police intercepted her at 220 Queen’s Road West. Under caution she admitted delivery of the drug in her handbag to the vicinity for someone. Personal background and mitigation put forward 2.She is 39 years of age. She has attained F. 3 level in a special school. Her father died 6 years ago. She has estranged from her mother and siblings due to her drug problem. She has an old aged boyfriend who has looked after her for 20 years. He is now living in an elderly’s home, just diagnosed to have rectum cancer. There are no further details of his illness. I do not find it a mitigating factor. 3.The psychiatric report dated 18 November 2011 obtained by this Court confirms her mild grade mental retardation, a condition which she says has been affecting her since P. 6. Her counsel claims she has been suffering from a depressive mood. This is not borne out by either the said report or the medical report dated 14 November 2011 obtained by herself. She requests for a further psychiatric or medical report to explore this aspect but I see no point doing so. 4.Based on the current reports, her counsel submits that she is easily beguiled into delivering drugs for want of an average-level insight into the severity of the present offence. This is her first offence for drug trafficking in her multifarious criminal records. 5.Her counsel refers me to the case of HKSAR v Chiu Pang [2002] 1 HKLRD 185 for the proposition that the sentencer should give weight to the mitigation by a defendant suffering from a mood disorder and a major depressive episode at the time of the offence. I accept that whilst general deterrence for drug trafficking cannot be over-emphasized, personal deterrence is the part to call into play discount in sentencing mentally affected defendants in appropriate cases. Sentencing guidelines 6.According to Secretary for Justice v Hii Siew Cheng [2007] 1 HKLRD 1, the sentence shall be 4 – 6 years for trafficking in 10 – 50 g of ketamine. Sentencing this Defendant 7.Given the unusual personal circumstances of the Defendant comparable to Chiu Pang (above), I take a starting point of 4½ years. Her plea of guilty attracts a one-third discount. She has no other mitigating factors. The sentence is 3 years.
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