COURT: The 1st defendant, Mr Lee Wan, and the 2nd defendant Miss Young Pui-yi, pleaded guilty to a charge of trafficking in a dangerous drug at the committal proceedings, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The charge against the 1st defendant, which is Charge 1, alleges that the 1st defendant on the 7th day of January 2014, outside Room 901, Kin Shue House, Lei Muk Shue Estate, Tsuen Wan, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 123.73 grammes of a mixture containing 55.84 grammes of heroin hydrochloride.
The charge against the 2nd defendant is Charge 2, and the particulars of the offence are that she on the 7th day of January 2014 at Kin Shue House, Lei Muk Shue Estate, Tsuen Wan, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 160.34 grammes of a mixture containing 83.75 grammes of heroin hydrochloride.
They are committed to this court for sentence.
Facts Admitted
On 7 January 2014 at about 6.42 pm, the 1st defendant came out of Room 901, Kin Shue House, Lei Muk Shue Estate, Tsuen Wan (“the flat”) which the police had kept under observation since 5.15 pm that day.
The police intercepted and searched the 1st defendant and found inside the inner pocket of his coat five plastic bags containing a total of 123.73 grammes of a mixture containing 55.84 grammes of heroin hydrochloride.
When being arrested and cautioned, the 1st defendant said, “I carry these dangerous drugs for someone else.”
The police searched the flat under a search warrant, and the door was opened by the 2nd defendant who was inside the flat at that time.
The police found two bags on a table in the sitting room containing, respectively, a mixture of 16.62 grammes and 1.37 grammes of which 7.36 grammes and 0.96 grammes were heroin hydrochloride.
Under arrest and caution, the 2nd defendant said, “the dangerous drug on the table is for my own consumption.”
On the awning outside the window of the sitting room of the flat, the police found a bag containing 80.46 grammes of a mixture containing 44.89 grammes of heroin hydrochloride.
An electronic scale and a metal spatula both with traces of heroin hydrochloride, a plastic pipe with traces of cocaine, two metal clips, four mobile telephones and four notebooks were found inside the flat.
Two bags containing, respectively, 34.13 grammes and 27.77 grammes of a mixture containing 18.25 grammes and 12.29 grammes of heroin hydrochloride together with an electronic scale were found on the 1st floor podium outside the window of the flat. The 2nd defendant claimed under caution that the scale found on the podium had been thrown out there by her.
Cash of HK$25,465.40, Renminbi 445 Yuan, and two mobile telephones were found on the 1st defendant. While cash of HK$19,542.10 was found on the 2nd defendant and inside the flat.
In the video-recorded interviews conducted subsequently, the 1st defendant denied any involvement in trafficking activities, while the 2nd defendant admitted that the two bags of heroin found on the table inside the sitting room were leftover from her earlier consumption of the drug which was worth about HK$7,000.
She further admitted that she used the scale found inside the flat to weigh the dangerous drugs for her consumption, the notebook to make records of customers purchasing dangerous drugs from her and the metal clips to seal the plastic bags containing heroin. She also confessed throwing the heroin out of the window of the flat to the 1st floor podium.
The estimated value of the dangerous drug seized from the 1st defendant was $96,138, and that of the dangerous drug found inside the flat, at the window awning and the 1st floor podium was $124,584.
Criminal Record
The 1st defendant has 6 previous convictions, including 3 counts of trafficking in a dangerous drug and one count of manufacturing a dangerous drug. He received substantial sentences for these offences. He was last convicted of 2 counts of trafficking in a dangerous drug on 14 December 2009 and was sentenced to a total of 52 months’ imprisonment.
The 2nd defendant has 8 previous convictions, including 6 counts of possession of a dangerous drug. She was last convicted of one count of possession of a dangerous drug on 14 January 2011 and was sentenced to Drug Addiction Training Centre.
Mitigation
The 1st defendant is aged 77, educated up to tertiary level both in Hong Kong and Japan. He has 12 children by his four wives. The 1st defendant has lost contact with all of them and is living alone in public housing.
Counsel for the 1st defendant submits mitigation letters of the 1st defendant, a pastor and the niece of the 1st defendant.
In his letter, the 1st defendant claims inter alia that he would mend his way of life through the Christian faith, and through the assistance of a friend who is a rehabilitated criminal. The 1st defendant points out that he has prostrate cancer and that 6.52 grammes of the heroin hydrochloride was for his own consumption. He had engaged in the business of publishing, trading and garment manufacturing, and he failed when he developed his business in China.
The pastor says in the letter that the defendant’s marriages were broken due to his previous offences. He now has the support of his friends and Christian faith, and has now reached the countdown period of his life.
The niece describes the 1st defendant as a generous person who is always ready to help others. She and a friend of the 1st defendant will help the 1st defendant to rehabilitate.
The 1st defendant, the pastor and the niece ask for clemency of the court. The defence counsel points out that the starting point for the 1st defendant should be about 8 years’ imprisonment. He also submits to the court medical documents relating to the appointment for treatment of the defendant’s prostrate cancer.
The 2nd defendant is aged 40, single, educated up to Form 5. She was jobless at the time of the offence and had previously been a store assistant of a supermarket. She is a drug addict and the two bags of the dangerous drug found on the table inside the flat was for her own consumption.
Counsel for the 2nd defendant submits to court a memo of the Correctional Services Department showing that the 2nd defendant on admission was found to be opiate positive in her urine sample.
The defence counsel points out that the starting point for the 2nd defendant is about 9 years’ imprisonment. He asks the court to give discount to both defendants for their plea of guilty and part of the dangerous drugs being for their own consumption.
Sentence
The Court of Appeal set down clear sentencing guidelines for trafficking in heroin hydrochloride in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. For a quantity of 50 to 200 grammes of heroin hydrochloride, the normal starting point is 8 to 12 years’ imprisonment.
The 1st charge involves 55.84 grammes of heroin hydrochloride, the starting point is therefore about 8 years 2 months’ imprisonment.
The court accepts that part of the dangerous drugs was for the 1st defendant’s own consumption, and the amount was 6.52 grammes of heroin hydrochloride. But even after deducting this amount, the remaining quantity of 49.32 grammes of heroin hydrochloride will still fetch a starting point of almost 8 years’ imprisonment.
One has to bear in mind that the 1st defendant being in possession of the dangerous drug for his own consumption still committed an offence. So the discount that can be given to the 1st defendant for this reason is minimal.
On the contrary, there is an aggravating factor in this case in that the 1st defendant is a persistent offender having previous convictions of manufacturing of a dangerous drug and trafficking in a dangerous drug.
He committed the present offence about 1 1/2 years after his discharge from prison. The court has considered to enhance the starting point, and has only decided not to do so in view of the advanced age and the illness of the 1st defendant.
Having considered the whole circumstances, the court adopts 8 years’ imprisonment as a starting point for the 1st charge. Giving credit to the 1st defendant for his plea of guilty, the court sentences him to 5 years 4 months’ imprisonment.
The amount of heroin hydrochloride involved in Charge 2 is 83.75 grammes which will give rise to a starting point of about 8 years 11 months’ imprisonment.
The court accepts that the dangerous drugs found on the table inside the flat, which is 8.32 grammes of heroin hydrochloride, was for the consumption of the 2nd defendant. But even for the remaining amount of 75.43 grammes of heroin hydrochloride, the starting point will still be about 8 years 8 months’ imprisonment. Similarly, the 2nd defendant in possessing the dangerous drugs for her own consumption is guilty of the offence of possession of a dangerous drug. The discount that can be given in this aspect is very little.
After considering the whole circumstances, the court adopts a starting point of 8 years 9 months’ imprisonment.
Giving credit to the 2nd defendant for her plea of guilty, the court sentences her to 5 years 10 months’ imprisonment for Charge 2.