HKSAR v. Chau Shu Yung, Kiwi

DCCC 1210/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1210 OF 2011

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and ketamine.

2.About 4:40 pm on 22 July 2011, PC 9947 (PW1), PC 54027 (PW2) and other police officers intercepted a male outside Lai Chi Mansion, 71 Lai Chi Kok Road, Kowloon for investigation.  That male told the police officers that he was going to Flat C, 13^th Floor to look for a friend in Room B of that flat.

3.The police officers took the male to Flat C, 13^th Floor where they intercepted another male outside the flat. PW1 entered the flat and saw the defendant standing next to a table.  The defendant was holding a yellow bag (Exhibit 1) in her right hand.  Upon seeing PW1, she threw Exhibit 1 on the table.

4.PWs 1 and 2 have entered the flat and were about to conduct a house search.  At that moment, the defendant admitted that the dangerous drugs were in Exhibit 1 and that they were not related to her friends.  PW1 cautioned the defendant.  Under caution, she admitted that the yellow bag on the table contained ketamine and cocaine.

5.PW2 seized Exhibit 1 and an electronic scale (Exhibit 8) from the table in the flat.  Exhibit 1 was found to contain:

(i) 1 plastic bag which contained traces of ketamine (Exhibit 2) containing another plastic bag which contained 11.60 grammes of a solid containing 7.51 grammes of cocaine (Exhibit 3);

(ii) 30 plastic bags which contained a total of 6.43 grammes of a solid containing 4.81 grammes of cocaine (Exhibit 4);

(iii) 1 plastic bag which contained 5.11 grammes of a powder containing 4.29 grammes of ketamine (Exhibit 5);

(iv) 1 plastic bag which contained 6.18 grammes of a powder containing 4.90 grammes of ketamine (Exhibit 6); and

(v) 1 pile of plastic bags (Exhibit 7).

6.PW1 arrested the defendant.  Under further caution, the defendant asked for a chance and claimed that the dangerous drugs were not related to her friends.  In her video interview, the defendant admitted that she had been residing in Room B of the flat since June 2011.  She had seen Exhibit 4 behind the table, but did not know to whom it belongs. Also, she did not know to whom Exhibits 3 and 5 to 8 belongs.

7.The defendant now admits that she possessed Exhibits 1 to 8 for the purpose of unlawful trafficking.

8.The defendant is now 27 and has 2 previous convictions of simple possession.

9.Defence lawyer Miss WONG informed me that the defendant is not married, but has 2 daughters (aged 9 and 5).  The elder daughter is now under the care of the defendant's parents and the younger one, the Director of Social Welfare.  The defendant is educated up to Form 2.  She used to work as a bar waitress earning $6,000 per month.  Shortly before her arrest, she quitted her job.  Miss WONG submitted that the defendant was lured by her boyfriend into keeping the drugs for him.  At the same time, the defendant had to earn money to support her parents and daughters.  She is now remorseful and has plans to reform herself in prison.  Miss WONG has also informed me that at the time of arrest, the defendant was pregnant, but subsequently had a miscarriage.

10.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough. Furthermore, a clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders. The defendant already has 2 convictions of simple possession.  She only has herself to blame this time for getting into much deeper trouble.

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.

12.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

13.The defendant trafficked in a cocktail of drugs consisting of 12.32 grammes of cocaine and 9.19 grammes of ketamine.  For 12.32 grammes of cocaine, the appropriate starting point is 5 years.  For 9.19 grammes of ketamine, the appropriate starting point is 3.5 years.  In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 21.51 grammes of cocaine), the starting point would have been 6 years.  Based on the nature and quantities of the cocktail components, instead of simply adding 3.5 years onto 5 years, I consider that the "combined" approach would arrive at a realistic and fair sentence. 

14.To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail drug, I adopt a starting point of 6.5 years' imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 52 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 4 years and 4 months.