HKSAR v. Ngai Ha (also known as So Yuen Chu)

DCCC 1145/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1145 OF 2013

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Reasons for Sentence

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1.The defendant has been convicted after trial of one charge of trafficking in dangerous drugs.

2.I have given full reasons in my verdict and will not repeat the facts or my reasons.

3.In short, the police conducted a licence check and raid on a karaoke nightclub on 3 August 2013 at about midnight.  During the operation, they searched the defendant’s handbag.  The defendant worked at this nightclub as a supervisor.

4.Police were not looking for dangerous drugs in her handbag, but in fact her identity card.  As a result of that, drugs were found inside a particular blue plastic resealable bag and in it were 24 smaller packets of drugs; 23 contained cocaine, which according to the government chemist certificate, the purity was 8.2 grammes, and the single last bag contained “Ice”, which was of a purity of 3.21 grammes.

5.In my findings, I found the defendant told the police under caution that she bought drugs for her own consumption because she was unhappy.  The video record of interview taken later gives further details admitting possession for her own consumption.  The voluntariness of records and admissions were challenged, but they were ultimately admitted into evidence.

6.The defence suggestion that the drugs were planted or put in the defendant’s bag after she left it unattended, I rejected.

7.The defendant does not have a clear record, but she has no convictions that relate to drugs.  The four convictions relate to immigration offences and gambling offences.

8.The defendant is 41 years old.  She has been in Hong Kong for six years, arriving here on a one-way permit.  She has worked three years as a “mama-san”.  In this club, she worked there for a year.

9.I have heard in mitigation details of the defendant’s background.  I am told that she is a filial daughter with elderly parents in China.  Those elderly parents rely on the defendant for financial support.  The defendant was educated up to Form 2 level.  She married young, but that marriage ended in disaster.  Her husband was unfaithful and an adulterer and they ultimately divorced after the defendant came to Hong Kong.  There are two children of that marriage, but they live with her ex-husband.

10.I have been told that she, since the divorce, has had to fend for herself and, as a result, find employment.  Because of her low standard of education this was the sort of work she could find to support herself. 

11.During the course of mitigation, defence counsel has asked the court to consider calling for certain reports before sentencing. Ms Moosdeen is concerned for the defendant’s mental state.  In particular, she displayed a very agitated and emotional state today after conviction.

12.The reality is that is not uncommon.  The realisation of what is to follow a conviction will cause distress.  It does not mean it is an issue that led to this offence or will it be a significant factor in mitigation; I will make appropriate orders to consider her well-being and welfare where custody is concerned.

13.This one charge involves two types of drugs. This means I have to consider the appropriate sentencing approach.  I have referred myself to the authority of HKSAR v Wong King Kau [2010] 4 HKC 443, where the two possible approaches are discussed; the individual or combined approach.

14.The authority that relates to trafficking cocaine and its sentencing guidelines is R v Lau Tak Ming & others [1992] HKLR 370.  The Court of Appeal says where up to 10 grammes of cocaine is trafficked the starting point is between 2 to 5 years.

15.The authority that relates to sentencing guidelines for trafficking “Ice” is Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.  The Court of Appeal held where up to 10 grammes of “Ice” is trafficked, the starting point is between 3 to 7 years.

16.Here, “Ice” is the more serious and potent drug, but the quality of cocaine is much more than the “Ice”.  If it were just the cocaine alone, mathematically speaking the starting point would be 4 years 4 or 5 months.  And if it were just the “Ice” alone, mathematically speaking the starting point would also be 4 years 4 or 5 months.  However, to come to an appropriate starting point where trafficking drugs is concerned, the consideration should not just be a mathematical calculation.

17.Sentencing should not be that clinical.  The guidelines for individual drugs is precisely that; guidelines.  There is room and should be room for manoeuvring to tailor-make a starting point for an individual defendant, depending on the circumstances of the case and that defendant’s mitigation.

18.I will consider mitigation put forward, quantity of the dangerous drugs, the authorities I have just referred to and facts of this case.  The facts include packaging of the drugs and the place where the dangerous drugs was located; that being a nightclub where drugs can be available for purchase.  The risk of dissemination of drugs in such a location is high.

19.At the same time, I consider the fact the defendant has no previous convictions for any drug-related offence, certainly not trafficking in dangerous drugs.

20.In addition, I need to consider the totality principle.  I propose to take the individual approach and to be fair and realistic to the defendant, the totality principle is vital.

21.After careful consideration of the factors I have just referred to, I consider a 5 year starting point appropriate.  I arrived at that figure by considering three-and-a-half years for cocaine appropriate, and add to that, one-and-a-half years for the “Ice”; that is a total of 5 years.

22.The defendant is convicted after trial.  I see no reason for any further discount.  The defendant is sentenced to 5 years’ imprisonment.

23.I order the defendant to be given psychiatric and/or psychological treatment if required.

24.I order the Correctional Services Department to consider the defendant to be put on safety watch or an appropriate watch as I have been told she may harm herself.