HKSAR v. Wan Man Ting

HCCC 117/2018

[2018] HKCFI 2303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 117 OF 2018

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

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COURT:

On 19 June 2017, at 5.15 pm, near the Mong Kok East MTR station, Wan Man‑ting and a male attracted the attention of a police officer. On inquiry by that officer, the male asserted that they were in a romantic relationship. A search was conducted on the male and nothing was found of significance.

The accused was then searched and the search of her backpack revealed 14 plastic bags, each bearing the writing “A6” on each, containing a plastic bag containing 37.5 grammes of a solid containing 28.8 grammes of ketamine, one plastic bag containing 2.43 grammes of a solid containing 1.86 grammes of ketamine, and 31 plastic bags containing a total of 6.2 grammes of a solid containing 5.92 grammes of cocaine, and six bags containing a total of 36.72 grammes of a crystalline solid containing 36.72 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. A further plastic bag containing another plastic bag containing 13.4 grammes of a solid containing 10.5 grammes of ketamine was produced by the accused of her own volition.

The accused was arrested and cautioned and, in answer to the caution, the accused said, “Ah Sir, somebody paid me $1,000 and asked me to help him carry. I did not know it was a dangerous drug.” The accused was taken to her residence which was searched and nothing of significance was found.

A short time later, the accused was interviewed under caution, and the interview was recorded on video. The essence of what she said in that interview is that she was summoned to Mong Kok East MTR station and she was asked to collect some stock from a person. That person turned up and placed the stock in her backpack and she was required to deliver the same to a private vehicle under the bridge of Langham Place. She was intercepted and arrested before she could carry out that task.

In total, she was carrying three kinds of dangerous drugs with street value as follows: 53.33 grammes of a solid containing 46.16 grammes of ketamine valued at just over $12,900; 6.20 grammes of a solid containing 5.29 grammes of cocaine valued at just over $5,200; and 36.72 grammes of a crystalline solid containing 36.72 grammes of ‘Ice’ valued at just over $12,500.

On April 2018, the accused pleaded guilty to trafficking in the drugs that have just been mentioned. By her plea of guilty, she admits that she was in possession of those drugs for unlawful trafficking.

She is aged 24, having been born in July 1994. She is a person with no previous convictions. She completed Secondary 3 education in Hong Kong. However, while on remand for these offences, she has undertaken courses in child development and early education and applied nutrition studies for infants and young children. These courses were conducted by the School of Continuing and Professional Studies at the Chinese University of Hong Kong.

At the time of the offence, she was unemployed. She was a single mother with two children aged 8 and 6, both boys. She was living with her parents at an estate in Choi Hung. I have received and considered mitigation letters from the accused herself and the parents of the accused.

Dealing first with the accused, she writes that she recognises the mistake that she has made and now realises the seriousness of the conduct to which she has pleaded guilty. Her letter tells me that she has undertaken the studies which I have mentioned earlier at the School of Continuing and Professional Studies at the Chinese University of Hong Kong. She is deeply and understandably concerned about the welfare of her two sons and realises the great imposition that the care of these two young boys is on her parents. Her letter concludes with a heartfelt plea to receive as low a sentence as is possible so that she can be reunited with her children and take up her responsibility as the mother of her two sons.

Her parents have also written a letter to the court. In that letter, they blamed themselves for the conduct of the accused. They tell me that the fact that each visit by them to their daughter in prison, at each visit, she has reiterated her remorse for her conduct and the consequences for her parents and her sons. They say, and parents are usually a pretty good judge of this, that they think she is deeply remorseful for her crimes.

I am sure that the accused has learned a bitter lesson from her conduct and in view of the sentence which is my duty to pass upon her, she will suffer the consequences of her mistakes and her remorse will be continued for some time to come. I express the hope that while she is in prison, she continues with her educational pursuits because she will need every little bit of assistance that such studies will provide her, given the very hard road that persons who are released from prison have to walk. I have no doubt whatever that however she felt carrying out these acts of monumental stupidity, she now realises the impact that she has had on her children and her parents and herself. It is heartening to see that she continues to receive the support of her parents. She has some difficult days ahead and that will ameliorate to some degree the pain which she is no doubt suffering at the moment.

The accused was carrying three different dangerous drugs. She was carrying significant quantities of each of those drugs. The community of Hong Kong has, for many years, viewed trafficking in dangerous drugs very seriously. The reason for this is not hard to understand. Each of the drugs is addictive and can have severe consequences for the persons who ingest them. Of the three drugs, cocaine and ‘Ice’ are highly addictive and in broad terms are ranked about the same level of seriousness as heroin.

The cost of these drugs is not just the risk to the individual who ingests them but there is a potentially serious cost to the community. That cost includes the need to provide treatment and rehabilitation to those who become addicted to any one or more of these drugs. Moreover, particularly in the case of the ingestion of ‘Ice’, there is a risk that those who have consumed the drug may become violent and commit acts of serious danger to the community.

I accept on the facts that the accused in this case was being employed as a low‑level courier. Even on the premise that she was paid $1,000 for carrying the dangerous drugs, the reality is that she has been shamelessly exploited by those who organise trafficking in dangerous drugs and profit vastly from that activity. So far as lowly traffickers such as the accused in this case, the relationship between risk and reward is a very unfavourable equation.

The courts of Hong Kong reflect community attitudes to the trafficking of dangerous drugs. The courts of Hong Kong have articulated a series of guidelines for the unlawful trafficking of dangerous drugs.

In relation to ketamine, the sentencing guidelines for trafficking in ketamine which were outlined in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 29-20 relevant to this case, the Court of Appeals suggested that for cases involving between 10 grammes and 50 grammes, a sentence of between 4 and 6 years’ imprisonment is appropriate.

In relation to ‘Ice’, the guidelines were restated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The consequences of this decision for this case would be that if the case had gone to trial, an amount of between 10 grammes and 70 grammes would attract a term of imprisonment of something between 7 and 11 years’ imprisonment.

A source of guidelines in relationship to the trafficking of cocaine starts with the decisions of the Court of Appeal in R v Lau Tak Ming & others [1990] 2 HKLR 370, in The Attorney General v Rojas [1994] 1 HKC 342 and other cases, the Court of Appeal declared that the guidelines in R v Lau Tak Ming is appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in HKSAR v Abdallah [2009] 2 HKLRD 437. The consequences of these decisions is that for quantities up to 10 grammes, a sentence of between 2 and 5 years is appropriate.

Dealing with each of the quantities individually, the following sentences, had this case gone to trial and the accused convicted, are as follows: 46.16 grammes of ketamine, about 5 years; 5.29 grammes of cocaine, about 3 years and 2 months; and 36.72 grammes of ‘Ice’, about 8 years and 6 months.

Sentencing where multiple drugs are found

A further dimension to the sentencing exercise which is required in the present case is to consider the issue from the fact that here is a collection of different dangerous drugs to which the accused has pleaded guilty. The authorities identify different approaches. The approaches identified in the authorities recognise that an approach where a sentence for each component of the collection of drugs in which the accused was trafficking might, if they were simply added together, produce the result that is unjust. This is, in the final result, a reflection of the basic principle that sentencing is an art and not a mathematical exercise and that the art of sentencing is devoted to producing a just result given the circumstances of the defendant.

A just result in this context against the background of the imperative which arises from the community view of trafficking in dangerous drugs is revealed in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Chan Yuk Leong CACC 318/2013. The approaches identified in the authorities recognised an approach for each component of the collection of drugs in which the accused is trafficking might be simply added together to produce a result that is likely to be unjust. The essence of the appropriate approach in this case is if the drugs are approximately similar in nature, then the approach known as the combined approach would be appropriate. See HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, para 3. The Court of Appeal in that case Cheung JA and Tong J said there might have to be some adjustments even if the combined approach is used so as to avoid absurdity. The concern to avoid absurdity and to do justice in the circumstances of the case was underlined in the decision of HKSAR v Chan Yuk Leong (above). In HKSAR v Wong Kin Kau (above), the Court of Appeal in dealing with three kinds of drugs, in that case, ‘Ice’, ketamine and herbal cannabis, indicated that whichever approach adopted, the paramount consideration was the totality at the overall starting point. In that regard, Tang VP, indicated that often the combined approach was more likely to lead to that result ([2010] 4 HKC 443, para 5-6).

It appears to me that the combined approach would probably best meet the justice of the case here. The total quantity of narcotic of all kinds seized from the accused is a fraction of her 88 grammes. If all of that was ‘Ice’, that would put the case in the 70 grammes to 300 grammes bracket which would attract a sentence of between 11 and 15 years’ imprisonment. On that assumption, a starting point of 11 years and 6 months would be appropriate.

However, that starting point would need to be radically reduced because more than 50 per cent of that weight is ketamine, which is viewed on a very different basis for sentencing purposes. Cocaine, the smallest quantity, is approximately equivalent to ‘Ice’ although marginally less serious. Any analysis in this area is far from an exact science and this analysis is, on no account, any exception. Balancing the fact that is outlined in the preceding paragraph, it seems to me that an appropriate overall starting point would be 9 years and 6 months. In coming to that figure, I have used the checking system found in the authorities in the name of avoiding an unjust result. And in this regard, I especially pay tribute to the assistance, I have to say, from counsel for the accused, Mr Wong Po-wing.

Discount for pleading guilty

When the accused was before a magistrate, she pleaded guilty at the committal stage. That occurred on 9 April 2018. This was, for all practical purposes, the earliest moment at which she could enter a plea of guilty. I take that plea to signify the accused taking responsibility for her conduct and expressing remorse. For many years, the courts of Hong Kong had sought to encourage a plea of guilty, and in particular, a plea of guilty at the earliest possible moment. The appropriate discount for this case would be one of one‑third.

The accused appears to have realised that trafficking in dangerous drugs is an act of monumental stupidity. Even if she did not use even 1 gramme of any of the drugs that she moved, she assisted in the distribution of drugs and in effect is a party to allowing other people in the community to suffer the harm that these drugs can, and almost always, create. She is a single mother to young boys and she has to raise them. She now appears to have a substantial insight into what she needs to do to become the mother that they need and deserve. She is fortunate to have the support of her parents and in the near term, that support will be absolutely critical to her coming out the other side and hopefully re-joining the Hong Kong community.

Doing the best I can to combine mercy and justice, I am discounting the sentence of sentence of 9 years and 6 months which, had you not pleaded guilty, would have been the appropriate sentence.

Accordingly, the order of this court is that you be sentenced to 6 years and 4 months’ imprisonment.