HKSAR v. Man Ka Yan

HCCC 172/2018

[2018] HKCFI 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 172 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 484 grammes of a crystalline solid containing 478 grammes of methamphetamine hydrochloride. The defendant was checked by customs officers at Lo Wu Control Point when she returned to Hong Kong from the mainland and under her clothes was a black girdle and inside the girdle was found a packet containing the drugs which are the subject matter of the charge.

Upon being arrested and cautioned, she admitted that she was to deliver the drugs to someone in Yuen Long for $3,000 reward. Subsequently, the defendant agreed to participate in a controlled delivery operation and the course of the afternoon, the defendant had answered some calls in relation to the details of the delivery of the drugs in Yuen Long. Later on in the evening of that day, a controlled delivery operation was mounted but it came to no fruitful result.

The movement record of the defendant showed that she left Hong Kong on 24 October last year in the afternoon and returned to Hong Kong the following afternoon on 25 October.

The estimated value of the seized dangerous drug was in the region of HKD$207,636.

The defendant is age 33 and has had three previous convictions, one of which was for trafficking in dangerous drugs. That was back in 2008 where she was sentenced to 2 years’ imprisonment in the District Court.

In mitigation, Mr Ma had submitted that he was informed by the defendant that that previous conviction for trafficking was really social trafficking, he said, and he therefore urged this court to take that into account and consider her that it was the first time that she has done this kind of trafficking for reward. I informed Mr Ma that I am not prepared to do that because social trafficking, or whatever, is still trafficking. The court has a duty to stamp out the evils of drug trafficking, be they social or for profit.

The only mitigation really that I can see in the circumstances is that the defendant pleaded guilty at the earliest opportunity.

The sentence to be considered has been laid down in the case of HKSAR V Tam Yi Chun [2014]3 HKLRD 691, which the Court of Appeal suggested that for trafficking in between 300 to 600 grammes of methamphetamine hydrochloride would merit a sentence of 15 to 20 years after trial.

It is a fact also that the Court of Appeal has said that the sentencing courts do not need to work it out to a mathematical certainty, but that each case is different and for this case, in view of the fact that the amount, the quantity of drug, is 478 grammes, I would consider that a reasonable starting point sentence would be 17 to 17½ years’ imprisonment.

Taking into account the background of the defendant, the last conviction for trafficking was in 2008, I will adopt the lesser of the starting point which is 17 years and I will enhance it for the cross-border trafficking, enhancing it by 9 months.

As Mr Ma has very correctly pointed out, in the case which is submitted by Mr Chau, that is the case of HKSAR v Jardin Rodela Maningas, CACC 278/2011, the Court of Appeal recognised that even for a failed controlled delivery that, and they said at paragraph 16, and I quote:

"It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant."

The Court of Appeal then allowed the appeal against sentence, set aside the sentence of 20 years’ imprisonment and substituted there a term of 18½ years’ imprisonment.

In this case, Mr Ma correctly pointed out that according to the calculation based on the Maningas case, that the deduction would come to overall a deduction of 40 per cent which would include, of course, the one-third off for her plea.

In view of that and not working it out to a mathematical certainty, I would therefore take into account the fact of the controlled delivery and sentence the defendant to 10 years’ imprisonment.