HKSAR v. Lee Wan Ting Abi

DCCC 1172 /2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1172 OF 2011

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BETWEEN

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Reasons for Sentence

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Introduction

1.The defendant was charged with one count of trafficking in a dangerous drug, namely 28.69 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The defendant challenged the admissibility of:

(i) the verbal admission she made outside No.95 Wing Fong Road at about 8:52 pm on 22 August 2011;

(ii) the post-recorded statement contained in PC1905 (“PW1”)’s official notebook; and

(iii) her video-recorded interview conducted on 23 August 2011.

Alternative procedure was conducted in which five police officers were called as prosecution witnesses and the defendant herself testified on special issue. On 24 February 2012, I gave a ruling that the aforesaid verbal admission, post-recorded statement and video-recorded interview were admissible.

3.On 14 March 2012, upon the application by the defence, plea was taken from the defendant again. On that occasion, the defendant pleaded guilty to the charge.

Facts

4.The facts admitted by the defendant are as follows:

(i) At about 20:50 hours on 22 August 2011, the defendant was stopped by PW1 for enquiry. From the white shopping paper bag carried by the defendant, PW1 found a total of 12 plastic bags containing 69.80 grammes of a powder containing 28.69 grammes of ketamine. Under caution, the defendant admitted that she was to deliver the dangerous drug for someone for a reward of HK$1,000.

(ii) In the video-recorded interview conducted on 23 August 2011, the defendant admitted, inter alia, that she knew the dangerous drug was ketamine.

Previous criminal conviction record

5.The defendant has one previous conviction of theft sentenced in April 2010. She was fined $5,000 on that occasion.

Antecedents

6.According to the antecedent statement made by the defendant on 23 August 2011, the defendant was born in Hong Kong in July 1986. She is now 25 years old. She received education in Hong Kong up to Form 2 level. She studied in New Zealand when she was 12 to 14 years old. Thereafter she came back to Hong Kong and stopped receiving any further education. In 2007 and 2008, she worked as a beautician with a daily wage of $350. Between 2010 and March 2011, she worked as an accounting staff with a monthly salary of $9,000. Thereafter, she has stopped working and started to rely on the Comprehensive Social Security Assistance at $3,000 per month. She started to consume ketamine since she was 16.

7.Counsel for the defendant confirmed that the defendant’s antecedents were correct, except that she had already got rid of the drug habit.

Mitigation

8.It was submitted that the strongest mitigating factor is the defendant’s guilty plea. Mr Fong asked this court to give a full one-third discount to the defendant despite the guilty plea was made after this court ruled in the aforesaid verbal admission, post-recorded statement and video-recorded interview. Mr Fong also asked this court to give further discount to the defendant on the ground that she did not have any drug related previous conviction.

9.Mr Fong submitted that the defendant had a loving and supporting family. Three letters respectively from the defendant, her mother and her sister were submitted to this court asking for leniency.

Sentence

10.In Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in a quantity of 10 to 50 grammes of ketamine, the sentence should be an imprisonment of between 4 to 6 years.

11.In the present case, the quantity of ketamine involved was 28.69 grammes. I consider a starting point of 4 years and 10 months’ imprisonment appropriate.

12.The defendant pleaded guilty to the charge only after this court ruled in her confessions. Five prosecution witnesses were called and the defendant herself testified on special issue. As the defendant’s guilty plea was not a timely one, I will only give her 20% discount for her guilty plea: HKSAR v Leung Cho Yi CACC385/2008. The sentence is therefore reduced to an imprisonment of 46.4 months, and I round it down to an imprisonment of 46 months and 10 days.

13.The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in dangerous drugs, and that age and clear record carry little weight in mitigation. Further, the defendant is not a person of clear record – she has a previous conviction of theft sentenced in April 2010. I do not consider there being any further mitigating features justifying any further reduction in sentence.

14.The defendant is therefore sentenced to 46 months and 10 days’ imprisonment.