HKSAR v. Chan Wai Man

DCCC 563/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 563 OF 2017

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

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

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

REASONS FOR SENTENCE

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

1.On 8 March 2017 the defendant marched into the Central Police Station and declared that she was about to traffic dangerous drugs.

2.Further enquiries revealed that she had been indebted and had lost her job since February 2017.  Through social media, she came across someone who offered her a job as a courier for drugs.  During the period between 2 March and 7 March she had made various deliveries of dangerous drugs to the total value of $48,600.  She suffered the pang of conscience during one of the deliveries when she witnessed the person to whom she made the delivery was a mother pushing a baby stroller.  She had tried to stop but was told, if she did, her family members would come to harm. 

3.She carried on until 8 March 2017, when she showed up at the police station.  She brought with her 15 plastic bags containing 47.9 grammes of ketamine and 28 plastic bags containing 4.01 grammes of cocaine. 

4.Despite her co-operative attitude, the information she furnished to the police did not result in the arrest of any other persons. 

5.On the above facts, the defendant is charged with one count of conspiracy to traffic in a dangerous drug.  She pleaded guilty and, upon the facts disclosed, she is convicted as charged.

Sentencing Considerations

6.The maximum sentence for conspiracy is 7 years’ imprisonment.  In order to gauge the severity of the present offence, I have to look at the offence the defendant conspired to commit.  For the 15 bags of ketamine, the present case falls within the 10 to 50 grammes bracket, warranting a term of imprisonment from 4 to 6 years (see Hii Siew Cheng [2008] 3 HKC 323).  If she was convicted of trafficking that quantity of ketamine in question, she should be imprisoned for 70 months.

7.Trafficking in cocaine is equivalent to trafficking in heroin (see AG v Rojas [1994] 1 HKC 342).  Under the authority of Lau Tak Ming [1990] 2 HKLR 370, the present case (that is, 4.01 grammes of cocaine) falls within the up-to-10-grammes bracket, warranting a term of imprisonment for 2 to 5 years.  If she were charged with trafficking for this amount, the term of imprisonment should be 40 months.

8.I do note that if the court is adhering to the tariff for trafficking dangerous drugs, the present case would fall outside the legal limit for the offence of conspiracy.

9.Having considered the possible sentence if the defendant were charged with trafficking of the quantities in question, I will adopt 5 years as the starting point in the present case.

10.The fact that she pleaded guilty would mean that this term of imprisonment would be reduced to 3 years and 4 months.

Mitigation

11.I turn to consider the other mitigating factors in this case. 

12.This is a rather unusual situation in that the defendant would probably not have been arrested had she not surrendered herself.  The defendant had been more than co-operative.  In fact, she offered every information she had, although none of which resulted in the arrest and charge of other personnel in this agreement.  However, this is a valid mitigating factor.

13.To have a better understanding of her background, I ordered a series of reports respectively by the probation officer, a psychiatrist and psychologist.  The doctors confirm that there was no clinical cause for the commission of the present offence.

14.The defendant has a clear record and, from the background revealed, I come to know the defendant is a 40-year-old woman and she had been leading a law-abiding life.  The reason for her committing the present offence seems to be that she had poor social skill and poor financial management skill.  As was pointed out by the clinical psychologist:-

“Miss Chan is impressed to be a simple-minded person with poor financial management and inadequate problem-solving skills. She was socially conforming and was susceptible to others’ influence. She often engaged in excessive spending for her own gratification or gaining others’ affection, without consideration of personal capacity or planning ahead.”

15.I am sympathetic to her.  I do not believe that the defendant was a bad person.  However, she is an adult and should be able to manage her own affairs and steer clear of behaviour that are illegal.  She is fully aware of what she was doing and had been committing offences of the most serious nature.  She should be punished accordingly.

16.Taking into account of her background and the events leading to her conviction, I will take an exceptional course of reducing one more year from her sentence. 

17.So, in the present case, she is sentenced to 2 years and 4 months’ imprisonment.  I hope that after she serves her sentence she should learn from her experience and learn to be more responsible and protective of herself.