HKSAR v. Au Tsz Lun

DCCC 567/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 567 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of trafficking in a dangerous drug, the date of the offence being on 23 March 2014, the quantity being 0.21 kilogrammes of a powder which contained 0.1 kilogramme or 100 grammes of ketamine. In terms of sentencing, the court will look at the narcotic quantity which is 100 grammes in this case.

2.The defendant has entered a plea of guilty but this was not at the first available opportunity in this trial.  She had contested a video record of interview made by her and the court ruled against the defence submission in that matter.  Following that, the defendant pleaded guilty and accepted the facts of the case as presented by the prosecution.

3.The facts that have been accepted by the defendant show that the offence occurred in the evening of 23 March 2014.  The offence occurred at an estate in Taipo in the New Territories and the defendant was intercepted when she was walking towards a place at which she sometimes resided.  The drugs particularised in the indictment were found in her handbag together with an electronic scale.  The defendant was immediately cautioned and at that time she said the drug was ketamine and she was trafficking the drug to earn money for her daughter.  The defendant made a subsequent video-recorded interview where she made further admissions that she had bought them actually in the building where she was arrested; that she had bought them for $8,000 but she paid only $2,000 for the drugs and the balance was to be paid from the proceeds of selling the drug.  The street value of the drug as estimated by the prosecution was $24,780.

4.The defendant has accepted her antecedents as put forward by the prosecution.  She is 26 years old.  She is of clear criminal record.  She is the mother of two daughters, one aged 6, that child living with her father, another child aged one who is at present living with the defendant’s paternal aunt and uncle. 

5.The defendant is of clear record, I obtained a background report on her.  It was also necessary to find out what arrangements had been made for her children as she now of necessity faces a sentence of imprisonment.  I would describe the report as a positive one.  The defendant in employment has worked as a cashier, receptionist and she has qualifications as a beauty consultant. 

6.She was married at a young age in 2008 and the marriage apparently has failed, as I understand it, as a result of her husband at that time taking a mistress.  She formed a relationship with another man with whom she has had a second child, the daughter born in 2013.  That gentleman apparently was a drug addict himself and then it would appear that after his detention she became a consumer of the drug ketamine herself.  In the report the defendant is very frank about how she has come to be addicted to the drug.  She says she was still depressed from her broken marriage and lost emotional support from her boyfriend.  She became addicted as a result of taking drugs that had been left by the boyfriend in the flat.

7.She told the reporting officer the drugs were for her self-consumption and sharing with other drug users.  She has promised to quit taking drugs and she wishes to resume as soon as possible her parental role to look after the younger daughter who is presently cared for by relatives.  Most people, family members and other persons interviewed about the defendant have spoken positively of her.  She very much wanted to become a mother herself leading to her marriage at quite a young age. 

8.I have also letters from her ex-husband and also a letter from the Police indicating that she had been a public‑spirited citizen in reporting crime in the past. The best one can say about the defendant is that she appears to have gone off the rails when she met the drug ketamine and it is unfortunate to see what may well have been a promising life ruined by her consumption and addiction to the drug.  An addiction to a drug is not simply a criminal matter, it is also a medical matter as well.  Not everyone becomes an addict but when they do, clearly their lives are ruined. 

9.Of importance in sentencing this defendant are these facts:-

Firstly, she is of clear record. Her only connection with crime is the fact that she is an addict. The second thing is that she is a mother of very young children. Her imprisonment not only impacts on her, it impacts on the children as well. It has been said that children have a right to a family life and despite the defendant’s criminality in this case, the court must be careful when restricting the rights of those children to their association and contact with their mother. I consider it to be a strong mitigating factor and I will give as much care to it as I possibly can in sentencing her.

10.It is necessary to determine a starting point for sentence in this case.  In the trafficking of dangerous drugs including ketamine there are clear guideline sentences.  They are there to ensure insofar as it is possible to maintain constancy in sentencing.  The defendant in this case is trafficking in a quantity of 100 grammes.  That falls in the range of between 50 to 300 grammes which is a starting point for sentence of between 6 to 9 years’ imprisonment.  I consider that looking at this defendant’s antecedents, especially of clear record, I should take the lowest point in the guideline.  So the starting point for calculation sense will be 6 years or 72 months in prison.

11.It is also clear from mitigation and also from the history of the defendant’s involvement with drugs that a quantity of the drug will be for personal consumption and the court should acknowledge that in giving a further reduction from sentence.  The most recent Court of Appeal case on this is HKSAR v Chow Chun Sang and that is [2012] 2 HKLRD 1121. The court said in paragraph 19:-

“We are of the view that in drug trafficking cases when all or parts of the drugs are intended for the trafficker’s own consumption the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 and 25 per cent of the basic starting point.”

It says:

“In determining the extent of discount in a particular case the court should have regard to factors including the total quantities of the drug, the proportion of the drugs intended for self use, the nature of drugs, whether the trafficking was financial gain, organised and premeditated and the background and criminal record of the defendant.”

12.The counsel has ventured that up to a quarter of the drugs may have been used for self use.  The trafficking itself, as the defendant said on arrest, was to support herself and her daughter and also no doubt her own need for the drug.  There was a measure of organisation but she had only recently become addicted to the drug in January 2014 and her background as being a young mother effectively abandoned by both the men in her life and her lack of any previous criminal record.

13.In respect of the discount for this area of mitigation, I shall take a figure in the region of 20 per cent.  I shall capitalise that at a figure of 16 months’ imprisonment reducing the figure at this point to 56 months’ imprisonment.

14.The defendant is also entitled to a discount from that sentence for her plea of guilty which has saved some time in this trial but more importantly is an acknowledgment of her own remorse and acknowledgement of her own criminality.  The defendant pleaded after the special issue was determined and of course a full discount of one-third from the sentence is not necessarily to be expected in those circumstances. 

15.I also note the prosecution’s submission that the conduct of the special issue involved serious allegations being made against the police officers.  Nevertheless, I do understand and acknowledge that the defendant is parted from a very young child and it is not unexpected that a mother in that situation may fight quite fearlessly for her freedom. 

16.What I shall do in this case is give a discount of 25 per cent.  I think it is clear from reading the background report and the mitigating letters that the defendant clearly has shown remorse and acknowledged her criminality and that should be reflected in the sentence she serves.

17.A further 25 per cent reduction from the 56 months will lead to a deduction of a further 14 months which leads to a final sentence of 42 months’ imprisonment.  That will be the sentence of the court.