HKSAR v. Mak Man Sin, Karman

DCCC 627 & 1068/2017(A) & 1057/2018
(consolidated)

[2019] HKDC 266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 627 & 1068 OF 2017(A) & 1057 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one joint charge of trafficking in 2.72 grammes of a crystalline solid containing 2.67 grammes of methamphetamine hydrochloride (‘ice’), contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance[2] (charge 3); and one charge of using an identity card relating to another person, contrary to section 7A (1A) of the Registration of Persons Ordinance[3] (charge 4).

2.In April 2018 the defendant appeared for trial on the trafficking charge together with Cheung Pak Long (D1) and Kwan Cheuk Man, Chapman (D2)[4].  However, before plea was taken and the trial started the defendant absconded.  The defendant was D3 at the trial and I will therefore refer to the defendant as D3 in my reasons for sentence. 

3.Full particulars of the offences are set out in the facts admitted by D3 today. 

Trafficking in ice

4.In summary between August and October 2016 PC 12205 and PC 18104 acted as undercover police officers in a dangerous drugs operation in the Yuen Long area to combat drug trafficking.  On 8 August 2016 PC 12205 and PC 18104 made the acquaintance of Cheung Pak Long (D1) in the Moses Bar in Yuen Long. 

5.In the early hours of 20 August 2016 D1 told PC 12205 that 3.5 grammes of ice would cost $1,000 and that he would inform him when there was stock. 

6.D3 agreed with D1 to supply the ice to PC 12205.  D1 then told PC 12205 that the stock was ready and brought the undercover police officers to meet D3, who he introduced as his “god sister”. 

7.PC 12205 was then told to walk over to where Kwan Cheuk Man, Chapman (D2) was standing.  PC 12205 gave $1,000 to D2 who gave PC 12205 one packet containing 2.67 grammes of ice. 

8.D1 was arrested on 17 December 2016 and D2 and D3 on 18 December 2016.

Failing to surrender

9.On 3 October 2017 D3 together with D1 and D2 indicated their pleas of not guilty and a trial date was fixed for 9 April 2018.  D3 appeared for trial on 9 April 2018 when Ms Ng confirmed the pleas of not guilty.  The trial was however adjourned for the defence to consider a non-prejudicial statement given by D1, who was to give evidence for the prosecution. 

10.On 10 April 2018 D3 appeared when the trial was further adjourned to the next day for discussions between the prosecution and counsel for D2 and D3. 

11.On 11 April D3 was absent.  Ms Ng on behalf of D3 informed the court that D3 was feeling dizzy and had gone to Queen Mary Hospital.  The trial was adjourned to the following day.

12.On 12 April D3 was again absent.  Ms Ng submitted a medical certificate from the Queen Mary Hospital granting D3 sick leave from 11-12 April.  The trial was further adjourned to 13 April.

13.On 13 April D3 did not appear.  Mr Ng explained that D3 had been to the police station that morning to report that someone had intimidated her the night before by banging on her door.  Ms Ng informed the court that a WhatsApp message was received from D3 saying that she would be able to come to court in the afternoon.   

14.Later in the morning Ms Ng informed the court that D3 had called saying that she was on the MTR on her way to court and would arrive in 30 minutes.  The case was stood down until 12 noon awaiting the appearance of D3.  When the court resumed Ms Ng informed the court that her solicitors had received a further message from D3 saying that she would not come to court.  At that stage a warrant of arrest was issued.

Using an identity card relating to another person

15.At around 7 p.m. on 28 August 2018 D3 visited her younger sister.  The younger sister was aware that D3 had failed to appear in court and suspected that she was wanted by the police. The boyfriend of the younger sister then called the police. 

16.When the police arrived at around 7:45 p.m. they asked D3 to produce her identity card.  D3 told WPC 25491 that she did not have her identity card with her and asked her boyfriend to go to her home to collect the card. 

17.At 9:20 p.m. D3’s boyfriend gave D3 the identity card of her elder sister Mak Man Ching, Candy.  D3 gave the identity card to WPC 25491. When the younger sister told the police D3 was not Mak Man Ching D3 was arrested.  In a cautioned interview D3 said she asked her boyfriend to bring her elder sister’s identity card because she did not want to be arrested. 

Mitigation

18.I have carefully considered everything said on behalf of D3 by Ms Ng both in court and in her written submission together with the mitigation letters written by D3, her mother and D3’s social worker.   The social worker Ms Wong Pui Ling, who has attended court to show her support for D3, describes in her letter the traumatic experiences in D3’s life and that D3 has assisted in anti-drug programs. 

19.D3 has three young children to look after and says that she absconded because she did not want to be separated from her children. 

20.D3 is again pregnant.  The expected date of confinement is 18 April.  D3 therefore became pregnant after she failed to attend court in April last year.  The father of the child has also attended court to show his support.

21.I also take into account that D3 last appeared in court in 2009 when she was sentenced to DATC for breach of probation, the defendant having been sentenced to probation in 2008 for possession of dangerous drugs.

Trafficking in dangerous drugs (charge 1)

22.In HKSAR v Tam Yi Chun[5] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

23.When sentencing D1 and D2 I adopted a starting point after trial of 4 years’ imprisonment for trafficking in 2.67 grammes of ice.  I am satisfied the same starting point is appropriate for D3.   

Discount for pleading guilty

24.As noted earlier D3 indicated her plea of not guilty on 3 October 2017 and a trial date was fixed for 9 April 2018.  The sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[6].

25.D2 also indicated his plea of not guilty on 3 October 2017.  Albeit D2 only pleaded guilty on the fifth day of trial, the delay partly due to the non-appearance of D3, I was satisfied in all the circumstances, in particular considering no evidence was called, that D2 was entitled to a discount of 20%.  D2 was sentenced to 3 years and 2 months’ imprisonment, which was just over 20%.

26.D3 having absconded, I am satisfied a discount of 18% is appropriate.  D3 is convicted and sentenced to 3 years and 3 months’ imprisonment, which is just over 18%.

Failing to surrender (charge 3)

27.The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.   

28.The use by D3 of her sister’s identity card to conceal her real identity in the hope of not being re-arrested and brought back to court is in my view properly to be regarded as an aggravating feature of sentence.

29.I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving D3 full credit for her plea of guilty reduces the sentence to 6 months’ imprisonment. 

Using an identity card relating to another person (charge 4)

30.In HKSAR v Li Chang Li[7] the Court of Appeal held that the starting point upon a plea of guilty for possession of a forged identity card or identity card belonging to another should ordinarily be 12 months, whether or not the offender was lawfully staying in Hong Kong.  Where the offender actually produces or uses the card in order to conceal his identity the Court of Appeal said the starting point upon a plea of guilty should be 15 months. 

31.HKSAR v Li Chang Li concerned a visitor from the Mainland.  In HKSAR v Fan King Lam the Court of Appeal said that where the offender is a Hong Kong permanent resident there is no specific tariff[8].

32.The maximum sentence for failing to surrender to court is 12 months’ imprisonment.  Taking into account that D3 used the identity card of her elder sister in an attempt to avoid being arrested for failing to surrender to court, I am satisfied that sentence for using an identity card relating to another person for that purpose should not exceed the maximum sentence for failing to surrender to court.

33.I am satisfied in the circumstances of the case that a starting point of 9 months’ imprisonment is appropriate.  Giving D3 full credit for her plea of guilty reduces the sentence to 6 months’ imprisonment. 

Totality

34.Having taken into account the use of the sister’s identity card in aggravation of the failing to surrender, I am satisfied concurrent sentences are appropriate for failing to surrender and using an identity card belonging to another.  The offences are however separate and distinct from the trafficking charge for which a wholly consecutive sentence is appropriate[9]. 

35.I am satisfied a total sentence of 3 years and 9 months’ imprisonment properly reflects D3’s overall criminal culpability on the three charges and takes into account D3’s personal circumstances and the seriousness of the offences[10].  

Sentence

36.D3 is convicted and sentenced as follows:

Charge 1 – 3 years and 3 months’ imprisonment;

Charge 3 – 6 months’ imprisonment; and

Charge 4 – 6 months’ imprisonment;

I order the sentences on charges 3 and 4 to be served concurrently but consecutive to charge 1 making a total sentence to be served by D3 of 3 years and 9 months’ imprisonment.