HKSAR v. Cheung Man Ching

HCCC 198/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 198 OF 2016

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT:

The defendant was originally charged with two counts of trafficking in a dangerous drug and one count of possession of a dangerous drug. Before me, she pleaded guilty to Count 1 which is for the offence of trafficking in a dangerous drug. She pleaded not guilty to the other two counts and I acceded to the request to leave the two counts on file, marked not to be proceeded with without the leave of the court.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. Police officers laying ambush at the corridor of the 12th floor of a building saw the defendant put a key into one of the mailboxes installed at the corridor. When the officers revealed themselves, the defendant ran away and entered a flat on the same floor. Officers followed and found the defendant alone inside.

Inside the mailbox in which the defendant had inserted a key, a blue paper box was found. Inside the box were two plastic bags, each containing four transparent resealable bags. ‘Ice’ was contained inside these bags. The quantity was 216 grammes of a crystalline solid containing 210 grammes of methamphetamine hydrochloride. The defendant was living in that flat and the mailbox was for that flat.

I was told that the defendant is 43 years of age. She has received secondary education. She has not married but has a daughter now 6 years old.

The defendant has an appalling criminal record. On two previous occasions, she was convicted of the offence of trafficking in dangerous drugs. The first time was in 1996 for which she was sentenced to 7 years’ imprisonment. The second time was in 2014 for which she was sentenced to 14 months’ imprisonment. She also has been convicted for nine charges of the offence of possession of dangerous drugs. The other offences she has committed included theft, assaulting a police officer, using a false identity card, using a false document and misleading a police officer.

She committed the first offence, which is theft, in 1991 when she was 18 years old. Her last conviction was in 2014, for the offences of using a false document, misleading a police officer and possession of dangerous drugs. She was sentenced to a total imprisonment term of 18 months. She committed the present offence just after two months of her release from prison.

Learned defence counsel, Mr Raymond Yu, urged the court to take into account the guilty plea and the determination of the defendant to turn over a new leaf. The court was informed that the defendant started off with a normal life and had worked in a shipping company and a finance company. Her life changed after her first boyfriend failed to keep his promise and deserted her after having migrated to Hungary. She was so devastated that she started to consume drugs to paralyse herself. Thereafter, she was not able to stay in any job for long. She turned wayward and went astray.

In 2009, she met another man and started cohabitation with him. The relationship sadly broke up when the couple had a dispute over whether to give birth to the baby they have. She insisted to keep the baby and as a result, she had to raise her daughter alone. Despite she had the assistance of a close friend whom she calls ‘sworn mother’, life was difficult. She was not able to find a good job because of her criminal records. Her reliance on drugs became heavier and heavier.

Since her last release from prison, she tried to turn over a new leaf but it was difficult to find a job. It was under these circumstances that she was lured by a friend and agreed to look after the drugs for him on the promise that she could stay in the flat mentioned earlier and consume part of the drugs.

The Court of Appeal held, in HKSAR v Tam Yi Chun [2014] 4 HKC 256, that in a case of trafficking in ‘Ice’ where the narcotic content was 70 to 300 grammes, the sentence would range from 11 to 15 years’ imprisonment. In deciding the starting point, I have to bear in mind the danger of mathematical progression causing injustice.

I see no reason to depart from the tariff. I have to take into account the fact that the defendant had been convicted twice for this offence before. In my judgment, for this factor, the sentence for Count 1 should be enhanced by about 5 months. In all the circumstances, I adopt a starting point of 13 years and 9 months for Count 1.

The defendant pleaded guilty and for this reason is entitled to a one-third discount.

Mr Yu urged the court to take into account that part of the drug would be for the defendant’s own consumption. Having regard to the previous conviction record of the defendant and the laboratory finding upon the defendant’s incarceration this time, I am prepared to accept that part of the dangerous drugs then in the defendant’s possession would be for her own consumption.

I, however, as I have told Mr Yu, have much reservation to accept, without further evidence, that as much as one-eighth, as asserted by the defence, would be for that purpose. Mr Yu expressly informed the court that the defence would only rely on his submission for this purpose. In considering the matter, I bore in mind the observation of the Court of Appeal in cases such as HKSAR v Wong Suet Hau, CACC 366/2000, the cases referred to the court by Mr Yu, as well as HKSAR v Leung Kai Wing, CACC 229/2016.

In my judgment, even if some of the drug would be for the defendant’s own consumption, the quantity for this purpose would only be small and the latent risk would be very high. In all the circumstances, I am prepared to give the defendant a further discount of 2 months for this purpose.

Having considered the whole circumstances, including what Mr Yu has said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to.

By reason of the matters aforesaid, I sentence you to 9 years’ imprisonment for Count 1.