COURT: The defendant, Miss Lee Suet-fan pleads guilty to one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134.
The particulars of offence are that the defendant, on the 2nd day of January 2014 at Room 627, Tsui On House, Tsui Ping Estate, Kwun Tong, Kowloon in Hong Kong unlawfully trafficked in a dangerous drug, namely 84.35 grammes of a crystalline solid containing 83.95 grammes of methamphetamine hydrochloride.
Facts Admitted
On 2 January 2014 at about 21:13 hours, the defendant came out of Room 627, Tsui On House, Tsui Ping Estate, Kowloon, hereinafter referred to as “the flat,” and was stopped and searched by police officers. Inside her handbag, Police Constable 34446 found a resealable plastic bag containing 3.77 grammes of a crystalline solid containing 3.74 grammes of methamphetamine hydrochloride, commonly known as “ice”. On being arrested and cautioned, the defendant said, “Ah Sir, the dangerous drug are mine. Please give me a chance.”
Police officers searched the flat in the presence of the defendant and two other persons who were inside the flat at that time. Inside a bedroom the defendant pointed at a transparent plastic box and police officers found therein five transparent resealable plastic bags containing a total weight of 80.58 grammes of a crystalline sold containing 80.21 grammes of “ice”. Inside the box, police officers also found an electronic scale, a spoon wrapped in a plastic bag and numerous resealable plastic bags.
On being arrested and cautioned again, the defendant said, “Ah Sir, the dangerous drug ‘ice’ belongs to me. I sell a bit of the dangerous drug ‘ice’ to my friends whenever they want it.”
In a video-recorded interview subsequently conducted, the defendant admitted inter alia that she was unemployed and had been consuming “ice” for several years. In mid‑December 2013 her friend Ah Fong suggested to her that she should keep more “ice” for her own consumption and for selling to others to cover the costs.
On 2 January 2014, she picked up the dangerous drug in question in a rubbish bin outside Tsui On House. Ah Fong told her that the dangerous drug were worth $10,000 and the defendant could pay when she had sold them. She had sold half a “wak” to a male prior to arrest. She was remorseful.
The street value of the “ice” in question in January 2014 was $36,017.
Criminal Record
The defendant has a clear criminal record.
Mitigation
The defendant is aged 25, married with a daughter aged 8 and a son aged 4, being looked after by the defendant’s mother. She was educated up to Form 2 and had worked as a fast food shop employee but was unemployed at the time of the offence. She has been a drug addict for 8 years. Her mother is in ill health and her husband was in prison at the time of the offence.
Counsel for the defendant points out that as years passed, the defendant has developed a heavy drug addiction, consuming 2 grammes of “ice” a day. The drugs were supplied to the defendant by a friend on a month credit for payment. She would consume half of them and would pay her friend, after selling the other half, at $500 for 1.75 grammes.
The defence counsel submitted to court mitigation letters written by the defendant, her mother and her elder sister. The defendant expresses remorsefulness in the letter and points out that through bad peers, she became addicted to dangerous drug when she was 15 years old. She has two children being looked after by her mother and in 2013, her husband was detained in the Drug Addiction Treatment Centre.
She committed the offence in question in a bid to earn quick money to ease the financial burden of the family. She promises not to offend the law again and asks for leniency.
The mother says in the letter that the father of the defendant passed away when the defendant was young and as she had to earn a living, she had no time to look after the defendant, resulting in her turning wayward. Both the mother and elder sister stress that the defendant was exploited by the others to commit the offence and is now remorseful. They ask for leniency on behalf of the defendant.
The defence counsel cites a number of cases to court, including HKSAR v Wong Suet Hau [2002] 1 HKLRD 69,
HKSAR v Capitania CACC 28/2004. HKSAR v Chau Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Law Number Chun CACC 360/2013, which concern reduction in sentence where a part of the dangerous drugs alleged to be trafficked is for the consumption of the defendant, and HKSAR v Chew Sik-pok CACC 502/98 which concerns daily dosage of “ice” of drug addicts.
The defence counsel also produces two medical reports of the defendant showing that on admission to the Correctional Service Department, the urine of the defendant was found to be positive in amphetamine. The defence counsel asks the court to give at least 15 per cent reduction in sentence to the defendant for part of the dangerous drug being for the defendant’s own consumption.
When the court indicates to the defence counsel that the court is prepared to accept part of the dangerous drug being for the defendant’s own consumption, but not as much as half of them, the defence counsel says that he is not going to take the matter any further. The defence counsel asks the court to treat the defendant leniently.
Sentence
The Court of Appeal laid down clear sentencing guidelines for the offence of trafficking in “ice” in the case of
AG v Ching Kwok Hung [1991] 2 HKLR 125. For a quantity of 7 to 300 grammes of “ice” the starting point is 10 to 14 years’ imprisonment. The amount of “ice” involved in the present case is 83.95 grammes and this brings a starting point of about 10 years 3 months’ imprisonment.
The defendant committed the offence for economic reasons. This, of course, cannot be an excuse to offend the law and is certainly not a valid ground for mitigation. The court finds no reason not to follow the sentencing guidelines, thus adopting 10 years 3 months’ imprisonment as the basic starting point.
As pointed out by the prosecution, it is said in the case of HKSAR v Tam Yi Chun CACC 524/2011, that for regular users of “ice” the average daily consumption is in the range of 0.1 to 0.5 grammes. In light of such observation of the Court of Appeal, coupled with the poor financial means of the defendant, the court, while accepting part of the “ice” being for the own consumption of the defendant, is of the view that it was not as much as half of the dangerous drugs in question.
According to the case of Wong Suet Hau, which is cited by the defence counsel, when it is accepted that a significant portion of the dangerous drug were for the defendant’s own consumption, the court should adjust the sentence to take into account that not all the dangerous drug were for the purpose of trafficking. In doing so, the court should bear in mind that possession of the dangerous drug for own consumption itself is an offence and the risk of such dangerous drug falling into the hands of others is also a factor to be considered. It is further said in the case that the gravity of trafficking in a dangerous drug is not mitigated in those cases where the traffickers are trafficking in order to fund their drug addiction.
The court is of the view that the part of the dangerous drugs the defendant intended for her own consumption was not of a significant portion. The court also bears in mind that there is a strong likelihood that should the demand of the defendant’s customers for dangerous drug be high, the defendant would have also sold those dangerous drug which she had reserved for her own consumption, thus tremendously increasing the latent risk of the dangerous drug falling into the hands of other people.
The court is, however, prepared to give the defendant some discount in sentence for the reason that part of the dangerous drug were for her own consumption.
The court adopts a basic starting point of 10 years 3 months’ imprisonment and in this connection, reduce it to 9 years’ imprisonment.
Giving credit to the guilty plea of the defendant, the court sentences her to 6 years’ imprisonment.