HKSAR v. Wu Hoi Ting

DCCC 183/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 183 OF 2013

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to two charges, the first being trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The second charge is failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

2.The facts of this case are very straightforward. On 18 October 2012 the defendant was stopped and searched by police officers on the street in Tsim Sha Tsui when they found her acting furtively. The time was at about 1.00 am in the morning. 

3.The police conducted a body search and found 3.2 grammes of a crystalline solid containing 3.16 grammes of methamphetamine hydrochloride, “Ice”, hidden under the defendant’s bra.  Under caution the defendant admitted that the crystalline solid was “Ice” and that she was prepared to sell it for a profit.  She told the police that at the time of her arrest she was waiting to meet the buyer to complete this drug transaction.

4.The defendant on the next morning was taken to Kowloon City Magistracy where she was granted bail.  The terms of her bail conditions were that she was to return to Kowloon City Magistracy on 14 December 2012.  The defendant failed to turn up without reasonable excuse, thereby breaching her bail conditions.  The principal magistrate issued a warrant of arrest for the defendant, hence Charge 2.

5.The defendant was re-arrested some one and a half months’ later and brought up to Kowloon City Magistracy where her bail money was estreated and she was remanded in gaol custody.

6.This was not a case where the defendant surrendered to the police.

7.I have heard in mitigation that the defendant is 26 years old and single.  The defendant is not a woman of clear record. She has many previous convictions, all relating to offences of dishonesty.  She has been previously sentenced to a probation order, a rehabilitation centre order, a training centre order and a drug addiction treatment centre order. She has no previous convictions that relate to possession of dangerous drugs or trafficking in dangerous drugs.  She does admit being a drug addict for a period of time and admits being addicted to the drug “Ice”. 

8.On her last conviction she was sentenced to a drug addiction treatment centre order in August 2011.  I have been told in mitigation that when she was released from this drug addiction treatment centre she was unable to find employment and as a result encountered financial difficulties.  Because of her financial difficulties she turned to trafficking in dangerous drugs to make money.

9.Defence counsel has done his utmost to mitigate on behalf of the defendant.  He has asked the court to exercise leniency and consider her young age relevant and take into account she has no previous similar convictions.  However, 26 years old is not a particularly young age and clearly the defendant has had a drug problem for many years.  She has been given chances before, been given help, but not turned over a new leaf. 

10.Defence counsel has referred me to two authorities in particular to assist me with sentence.  I have taken into account the authority of HKSAR v Ching Kwok Hung, CAAR 15/1990 in particular, paragraph 24.  In that authority a guideline for trafficking “Ice” is set out.  It is clear that where “Ice” of up to 10 grammes is trafficked a 3 to 7 years’ term of imprisonment is appropriate.  The typing error of paragraph 24 was confirmed in the authority of HKSAR v Capitania, CACC 28/2004. The reference to “up to 12 grammes” was confirmed to be “up to 10 grammes”.

11.I have taken into account mitigation put forward on the defendant’s behalf and that will include the defendant’s age, background, the facts of this case, and the amount of “Ice” involved.  I have taken into account that the defendant has no previous drug-related convictions. 

12.According to the guidelines of that authority I have just referred to, I find it entirely appropriate for Charge 1 to consider a starting point of 4 years’ imprisonment.  The defendant has pleaded guilty and is entitled to a discount of 16 months for her plea.

13.For Charge 1, the defendant is sentenced to 2 years and 8 months’ imprisonment.

14.For Charge 2, I bear in mind that the maximum term of imprisonment that can be imposed is 12 months.  The defendant has no previous record of absconding.  I can see from her record there has not been a warrant of arrest issued.  I also take into account the defendant did not surrender in this case.  I will take a starting point of 6 months’ imprisonment and discount this starting point by 2 months for the defendant’s plea.

15.For Charge 2, the defendant is sentenced to 4 months’ imprisonment.

16.Having considered the totality principle, I will order that 2 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently. 

17.Accordingly, the total sentence is one of 2 years and 10 months.

Please refer to CACC154/2013 for the relevant appeal(s) to the Court of Appeal.