HKSAR v. Man Hoi Ling and Another

DCCC 587/2024

[2025] HKDC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 587 OF 2024

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REASONS FOR SENTENCE

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1.Both defendants have pleaded guilty to charges of trafficking in a dangerous drug. For D1, it would be the 1^st and 2^nd charge and for D2, it would be the 2^nd charge. They also agreed to the Summary of Facts and were convicted of the charges.

Facts

2.On 19 August 2023, customs officers intercepted D1 and D2 separately at the Customs Arrival Hall A in Hong Kong International Airport.  Upon search by the customs officers, 25 sealed bags containing 5,990 grammes of herbal cannabis were found inside the suitcase D1 was carrying while 28 sealed bags containing 7,057 grammes of herbal cannabis were found inside the suitcase D2 was carrying.  The quantities of the drugs were later confirmed by government chemist.

3.They were both arrested and cautioned.  Under caution, D1 stated, inter alia, that her friend asked her to bring bags of Thailand local products, given by another male, back to Hong Kong, and that she would hand over those bags to this friend in Hong Kong and this friend would treat her meal without other rewards.  It is also said that this friend would ask D1 to book flight and hotel for D2 which were paid for by this friend.  D2’s passport details were sent to D1, D1 and D2 then departed Hong Kong to Thailand together.  They stayed in the same hotel, travelled back to Hong Kong on the same flight.

4.Under caution, D2 stated, inter alia, that his friend arranged and paid for his itinerary to Thailand and he was asked to bring back a suitcase back to Hong Kong and deliver it back to his friend.  His friend also told him that someone else would take the same flight with him.  He was told that medicine was inside the suitcase that he was carrying.

5.Both D1 and D2 volunteered to participate in the controlled delivery arranged by customs officers.  They contacted their friends and asking them to pick up the suitcases.  However, the controlled delivery was unsuccessful as both of these friends refused to respond further after some exchanges.

6.Both defendants provided passwords of their mobile phones to the customs officers for examination, which shows that D2 was recruited by his friends and that there were WhatsApp conversations with his friends.  About 2 weeks before the journey to Thailand, D2 was recruited by his friend to bring herbs from Thailand to Hong Kong for a $20,000 reward.  He was also told that there would be another courier who will also receive $20,000.  During the trip, both defendants had close communication and D1 had asked D2 to collect the suitcase and asked him to collect money in her room. 

7.D1’s mobile phone also showed that she booked itinerary for D2 and selected their seats for the return flight to Hong Kong, and that it was she that communicated with the friend who asked her to notify him after she passed the gate in the airport.

Criminal Record

8.D1 has only one previous conviction of assisting in managing a gambling establishment for which she was fined $3,000 and put on sentence of 2 months suspended for 18 months on 9 January 2023.

9.D2 has one previous conviction of possession of dangerous drugs in the year 2019 for which he was fined $1,000. 

Mitigation

D1

10.D1 is aged 28.  She works as a courier earning $25,000 per month at the time of arrest and she lived in a public housing estate.

11.Defence counsel for D1 said, following the sentencing guideline in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, the sentencing starting point for trafficking 5,990 grammes of cannabis in herbal form (1^st charge)  should be 36 months’ imprisonment, and that for trafficking 7,057 grammes of cannabis in herbal form (2^nd charge), the sentencing starting point should be 40.2 months’ imprisonment.  He said that as D1 faces both charges, the total amount of cannabis in herbal form trafficked by D1 is 13,047 grammes, the same should attract a sentencing starting point of 60.1 months’ imprisonment.

12.He also produced to court copies of the consultation summary of D1 by a psychiatrist of North District Hospital, a psychiatric report of D1 dated 16 December 2024 from North District Hospital, a medical report of D1 dated 20 December 2024 from Alice Ho Miu Ling Nethersole Hospital.

13.Defence counsel for D1 submitted that as D1 has pleaded guilty, she should be entitled to one-third sentencing discount.

D2

14.D2 is aged 32.  He came from Thailand, has received education up to high school level in Thailand.  His father was born in Hong Kong and therefore D2 has a Hong Kong ID card.  Before arrest, he was working as a chef earning monthly $20,000 per month.  D2 is married with a son of 11 years old, both his son and D2’s mother lived in Thailand.  D2’s wife has to go to Korea to work as a saleslady to earn a living because of D2’s arrest.

15.It was said that D2 is now deeply remorseful and he begs this court for leniency.  He has written a mitigation letter to this court evidencing his remorse.

16.Defence counsel for D2 conceded that the sentencing starting point of trafficking 7,057 grammes of herbal cannabis, following the sentence guideline in the Nguyen Thang Loi case, should be 40.2 months’ imprisonment.

17.She also referred this court to the case of HKSAR v Abdallah [2009] 2 HKLRD 437, where the Court of Appeal stipulated the international element as an aggravating factor in sentencing which would enhance the sentencing starting point.  In that case, the Court of Appeal dealing with this international element stated that they would not envisage the enhancement, for any of the reasons that they have itemized, for amounts above 1 kilogramme will be less than 2 years’ imprisonment in addition to the new guideline tariff that they have set out. 

18.In that case, the drugs involved were heroin and cocaine.  It is submitted by defence counsel for D2 that there are apparently no guideline imposed by the Court of Appeal specifically for enhancement by reason of international element for cannabis in herbal form. 

19.She also referred this court to the cases of HKSAR v Hari Krishan, DCCC 77/2019, HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, and HKSAR v Smit Hector Edward [2017] 1 HKLRD 287.  She submitted that the facts concerning controlled delivery in Smit Hector Edward case are quite similar to those in the present case, where D2 volunteered to participate in a controlled delivery although not successful, the same was not due to the fault of the defendants.  She asked this court to give D2 a total sentencing discount, including that of the guilty plea, of not less than 37.85%.

Discussion

20.This court has carefully considered mitigation submissions by both defence counsel as well as legal authorities cited, medical reports and psychiatric reports of D1, and mitigation letters from D2. 

21.Trafficking in dangerous drugs is a very serious offence.  Personal background and circumstances of the defendant are seldom a valid mitigating factor. 

22.On conviction upon indictment, a person is liable to a fine of $5 million and imprisonment for life. 

23.Both D1 and D2 here are couriers for drug importing into Hong Kong hired clearly by a syndicate.  They discharged vital role and should expect to receive condign punishment aligned to tariff guideline. 

1^st charge (D1)

24.Following the sentencing guideline in the Nguyen Thang Loi case, the sentencing starting point is, as conceded by defence counsel, 36 months’ imprisonment. 

25.As D1 took the drugs into Hong Kong from Thailand, the international element is present.  This is clearly an aggravating feature in sentencing, and the sentencing starting point is enhanced by 4 months to 40 months’ imprisonment. (HKSAR v Abdallah [2009] 2 HKLRD 437)

26.It is noted that D1 made travel arrangements for D2, but for this reason this court not going to enhance the sentencing starting point. 

27.D1 has pleaded guilty and is therefore entitled to one-third sentencing discount.  Further, although defence counsel for D1 is silent in the issue of controlled delivery, the Summary of Facts showed that both D1 and D2 have volunteered and participated in a controlled delivery, which though not fruitful, was not due to the fault of any of the defendants.  They did try to assist the authorities.  In the circumstances, the court is willing to give D1 a sentencing discount of total 37% (including that of guilty plea). 

28.D1 is therefore sentenced to 25 months and 6 days’ imprisonment for the 1^st charge. 

2^nd charge (D1 & D2)

29.Following the same sentencing guideline, the sentencing starting point for the 2^nd charge is 40.2 months’ imprisonment. 

30.The same is enhanced by 4 months to 44.2 months’ imprisonment by reason of the international element.  The court accepts that by reason of the controlled the delivery, though not successful, both defendants should be entitled to 37% sentencing discount upon plea.

31.D1 and D2 are each sentenced to 27 months and 24 days’ imprisonment for the 2^nd charge. 

Totality

32.D1 trafficked a total of 13,047 grammes of cannabis in herbal form under the two charges. Had she been charged under one charge, the sentencing starting point should be 60.1 months’ imprisonment.  The same after enhancement of 4 months by reason of the international element would arrive at 64.1 months’ imprisonment, which after the 37% sentencing discount would arrive at 40 months and 12 days’ imprisonment. 

33.Considering the circumstances, the court would therefore order that 15 months and 6 days’ imprisonment for the 2^nd charge is to run consecutive to the sentence in the 1^st charge, the rest to run concurrently. 

34.As for the suspended sentence of D1, the court on this occasion is not going to activate the same though they are active at the time of commission of these offences, as they are different in nature. 

35.D1 is therefore sentenced to a total of 40 months and 12 days’ imprisonment, and D2 is sentenced to 27 months and 24 days in this case.