HKSAR v. Thawikun, Sumitra

HCCC 223/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 223 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Yes, defendant, please stand.

The defendant had pleaded guilty in the court below to one count of trafficking in a dangerous drug, namely 27.07 grammes of a crystalline solid containing 26.48 grammes of methamphetamine hydrochloride.

The facts are that on 8 January this year, at about 11.36 pm, the defendant was seen by police officers holding a red plastic bag in her right hand. The police followed her to the 14th floor of the building in Wan Chai and when she was stopped, the defendant then took out a packet wrapped in tissue paper, inside which was found the dangerous drug.

Upon a search of the plastic bag, found inside were empty resealable plastic bags, an inhaling device consisting of a plastic bottle with straws, an electronic scale, a piece of tin foil and a straw.

At the scene of the arrest, under caution, the defendant admitted the things belonged to her. Nothing suspicious was subsequently found on a search of the defendant’s residence on the 14th floor of that building.

In a video-recorded interview the defendant said that the packet of “ice” found on her was for trafficking for a reward of $3,000. The inhaling device, found in the plastic bag, was for her to smoke “ice.” And the empty plastic bags found in the red plastic bag were for packaging the “ice” for sale.

The street value of the dangerous drug seized were in the region of $11,559.

The defendant is a Thai national and is aged 38. She came to Hong Kong either in the year 2000 or 2002, it does not matter, but she came to Hong Kong in order to live with her husband, she says, at that time who worked as a construction worker.

After she came to Hong Kong, she worked as a cleaner. She had some four children with her husband, ages ranging from 9 to 16 years old now. All four are now in Thailand living with their paternal grandmother. The defendant divorced in 2006 and the defendant then started to work as a masseuse.

The defendant, I am told, became addicted to drugs. She lost her job and began living with a drug addict. A daughter was born to her, who is now 5 years old. A most irresponsible conduct that was revealed in mitigation was that she continued to take drugs during the time she was pregnant with this daughter.

Then she lived with another boyfriend and a second daughter was born, now 2 years old. Both daughters are now back in Thailand living with their maternal grandmother. The defendant herself wrote a letter in mitigation, explaining how she is remorseful and how she came to know the drug seller who would sell her drugs cheaply and how, therefore, she was able to fund her drug addiction.

In mitigation, Ms Lee had put forward the mitigation that half of the seized drugs were for the defendant’s own consumption. I informed Ms Lee that she is welcome to call evidence on that, because I am not prepared to accept that half of the seized drugs were for her own consumption. I am prepared, however, to accept that part of the drugs were for her own consumption seeing that the defendant is a drug addict.

But I have a question mark as to whether the defendant can support her drug addiction by taking half of the seized drugs for her own consumption, as she is unemployed and Ms Lee said that she is funded by her present boyfriend who is a construction worker. I invited therefore, evidence to be called, but after an adjournment, Ms Lee said that the defence is not calling any evidence on this point.

Now, trafficking in “ice,” in methamphetamine hydrochloride is a very serious offence. The Court of Appeal has laid down guidelines back in the year 1991, in the case of Ching Kwok Hung, that for trafficking in between 10 to 70 grammes of “ice” would merit a sentence, after trial, of 7 to 10 years’ imprisonment.

In this case, the defendant is in possession of 26.48 grammes of methamphetamine hydrochloride and having considered the background of the case, the sentencing guideline and mitigation, I consider that a starting point of 7½ year’s imprisonment is appropriate.

I do take into account that this is the defendant’s first drug conviction. As far as the fact that some of the drugs for her own consumption, I pray in aid the case of HKSAR v Cheuk Kin Man, which was a case submitted by Ms Lee. This case is reported in [2010], 5, HKLRD 561, where, the Court of Appeal considered the fact of what discount to give in relation to a self-confessed drug addict found with a quantity of dangerous drugs. And in that case, similarly, the defendant was not in a financial position to buy such a large quantity of drugs for her own consumption.

The Court of Appeal said that, in general, even if part of the dangerous drugs were for self consumption, an appropriate discount should be given, but this would not be substantial because of the latent risk that these drugs, intended for self consumption, might be trafficked. And the Court of Appeal was there referring to the case of the HKSAR v Wong Suet Hau [2002], 1 HKLRD, 69.

So I do consider, in this case, that the defendant’s financial position would not be sufficient for her to take half of the present drugs for her own consumption. However, I do consider that she may take part of it for her own consumption. So I would reduce the 7½ years starting point to 6½ years, taking into account that part of the drugs were for her own consumption.

And after that, I will give her the full one-third discount for her plea. And therefore the defendant will be going to prison for 4 years and 4 months.

Now, there is, Ms Lee, there’s the question of the suspended sentence. Have you got anything you wish to say?

MS LEE: Actually I have not much to say about it. Actually, she committed offence during the suspension.

COURT: Yes.

MS LEE: Yes, and...

COURT: Thank you. As the defendant was under a suspended sentence at the time of the offence, I think it is a 3 month concurrent sentence for two charges, and was suspended for 18 months in September 2013. So she was in breach of that suspended sentence and therefore I see no reason why the 3 months suspended sentence should not be activated. And that 3 month sentence will be served consecutively, or rather, this sentence will be served consecutive to that 3 month sentence which was given to her back in September 2013.