HKSAR v. Tsui Mung Ying and Others

HCCC 312/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 312 OF 2014

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

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COURT: Yes, these are my reasons for sentence. A go-between, Dave, put PW1, an undercover female police officer in touch with D1 in Lan Kwai Fong area for the purchase of ketamine. On that first occasion, D1 sold 38.84 grammes of ketamine to PW1, and they exchanged mobile phone numbers.

In slightly over half a month later, D1 contacted PW1, identified herself, and left PW1 her new contact number. Later that day, PW1 called D1, and it was agreed that D1 would sell her about 9 ounces of drugs, which cost $13,500. That evening, D1 and PW1 met up. D3 joined them and placed a packet of drugs in PW1’s bag. In exchange, PW1 paid marked money to D3, and D3 also exchanged mobile phone numbers with her.

On the third occasion, again, about half a month later, D1 called PW1 with yet another mobile number, telling PW1 that she had come by some good quality ketamine, and offered to sell six ounces to her. They met up and D1 told PW1 that her boss would bring the stuff. D1 left after D2 arrived, and returned with a plastic bag containing seven packets, for which PW1 paid $9,700 to D2.

On the fourth occasion, arrangement was made so that PW1 met up with D1 to collect five ounces of ketamine from a flush tank inside a disabled toilet in a shopping mall. After D1 handed that packet to PW1, PW1 passed to D1 $10,000 in cash.

On the last occasion, PW1 called D2 and subsequently, arrangement was made for D1 to pass the drugs to PW1’s friend, PW2, also an undercover police officer, for safety reasons. Eventually, D1 gave PW2 a packet containing drugs. D2 and PW1 received phone call from D1 and PW2 respectively confirming that the drugs passed hands. After a while, D1 was arrested, and D2 was arrested when she was leaving the restaurant with PW1 to go to a bank for PW1 to make deposits into her bank account.

D1 now pleaded guilty to four charges, and D2, two charges of traffic in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. D3 pleaded guilty to one charge of trafficking in purported dangerous drug, contrary to Section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance.

In respect of the four charges D1 had pleaded guilty to, the narcotic amount and the retail value are as follows:

1) Charge 1, 38.84 grammes, retail value HK$6,091;

2)  Charge 3, 119.3 grammes, and retail value is HK$17,508;

3) Charge 4, 83.99 grammes, HK$14,284;

4) Charge 5, 43.75 grammes, HK$9,013.

D2 is involved, likewise, in Charges 3 and 5, whilst the purported drugs involved by D3 in respect of Charge 2 is 0.31 kilogramme.

D1 has three previous items of conviction. She was sentenced to 3 years’ imprisonment for conspiracy to defraud on 26 January 2015. Those offences were committed between 20 December 2013 to 9 January 2014, ie at roughly the same time as the present offences.

D2 has a clear record.

D3 has five items of previous convictions, one of which concerns trafficking in dangerous drugs, for which he was sentenced to 3 years’ imprisonment on 21 January 2011. He was last discharged from prison on 28 February 2013, ie the present offences committed in less than a year after his discharge.

Mitigation

By way of mitigation, I was told that D1’s mother died when she was young, and her relationship with her stepmother and brother was not good. She picked up her addiction to dangerous drugs from her peers, and after she quitted her job in August 2013, she was finally driven into the trade as a courier.

She is now remorseful and has gained insight into her wrongdoing, and she promises to behave herself whilst in prison, and make use of the time in remand to study and take up some courses, which would enable her to reintegrate into society upon her discharge.

Counsel urges me to take into account the totality principle both in regard to the number of charges that she faces in the present case and the imprisonment term that she is currently serving in respect of the conspiracy charge as from January 2015.

D2 is now aged 32, a Macau citizen married to a Hong Kong resident. She has a clear record, and she committed the present offences for financial reasons, and is now remorseful and prepared to turn over a new leaf.

She has completed distance education during her remand, and has started to enrol in other courses. Counsel urged on her behalf for a lenient sentence so that she will be able to reunite with her daughter who is now only aged 3, as soon as possible.

D3 is now aged 23. By way of mitigation, it is said that during his remand, he has reflected deeply and determined to look for a proper job upon his discharge, to look after his family members including his young daughter.

Sentence

In sentencing the defendants, I have taken into account their guilty pleas, mitigation forwarded, and submission by their counsel, and I have also perused the various authorities as well as the mitigation letters.

In respect of D1 and D2, the present case involved different offences. In respect of D1, multiple offences committed over a period of what is likely less than 3 months.

In cases where a person have sold drugs on a number of occasions to an undercover agent, the combined weight of the drugs is only one consideration, albeit an important factor, to be borne in mind. The cases HKSAR v Lai Yau Fat CACC 278/2000. The separate acts of trafficking are repeated acts of offending, and thus aggravating features, as per Wright J in HKSAR v Lui Wai Kam CACC 400/2009.

In the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, Stock J said:

“The ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care first to pass a sentence for each individual offence that is appropriate to that offence, in the circumstances of its commission, and second, not to punish the offender twice for the same conduct. Multiple offence scenario that involves offences different in nature, or the same committed on quite separate occasions. In that situation, the court will invariably have concluded that, in principle, it may impose consecutive sentences. But the courts still need to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle.”

McWalters J in HKSAR v PAU KING KONG CACC 465/2012 said:

“In the present case, it is true that all the transactions involved the applicant as the seller and PW1 as purchaser. But that fact alone is not sufficient for the court to conclude that punishing the applicant for one transaction would adequately reflect his culpability in respect of the other transactions taking place on different dates. The judge should have concluded that each charge represented a separate act of trafficking, which added to the overall culpability of the applicant’s conduct. Then had he so concluded, he should have gone on to apply the totality principle as preliminary step to determining what orders he should make in respect of consecutive sentences.”

In the present case, whilst I bear in mind the aggregate amount of total narcotics sold by D1 on the four occasions amount to 285.88 grammes of ketamine, and by D2 on the two occasions is 163.05 grammes, I will deal with each offence separately with a starting point according to the gravity of the offence and the circumstances of its commission.

In respect of Charge 1, the amount involved, 38.84 grammes, tariff, 4 to 6 years. I adopt a starting point of 5 years.

Charge 3, involving a 119.3 grammes, the tariff is between 6 to 9 years. I adopt a starting point of 7 years.

Charge 4 involves 89.99 grammes, tariff, 6 to 9 years. I adopt a starting point of 6 and a half years.

For Charge 5, involving 43.75 grammes, tariff 4 to 6 years, I adopt 5 and a half years starting point.

So I shall give the full one-third discount to both D1 and D2.

So for D1, Charge 1, 40 months’ imprisonment. Charge 3, 56 months. Charge 4, 52 months. Charge 5, 44 months. For D1, Charges 3 and 4 involves the largest amount of drugs. I order 18 months out of each, and 12 months out of Charge 5, to run consecutively to the 40 months of Charge 1, making a total of 88 months. So in essence, it is 40 plus 18 plus 18 plus 12, amounts to 88 months. I have taken into account that she is now serving another sentence in respect of a conspiracy charge. The present sentence of 88 months is to commence after D1 has served 9 months of a sentence in respect of DCCC 957/2014.

Now I turn to D2. She is involved in Charges 3 and 5. Similarly, I adopt starting point of 7 years and 5 and a half years. Given the full one-third discount for Charge 3, she receives a sentence of 56 months; for Charge 5, 44 months of imprisonment. I order 12 months out of Charge 5 to run consecutively, making a total 68 months’ imprisonment, 56 plus 12.

I now turn to D3, who faces one charge of trafficking in purported dangerous drugs. The seriousness of Section 4A offence is viewed differently by the court from Section 4 offences. The Court of Appeal in HKSAR v Li Oi Yee CACC 362/2010, review the case of Lee Wing Chun:

“The amending legislation of 1980 makes it clear that the legislature was drawing a distinction between the case of a man who believes that he is actually selling dangerous drugs, whereas the substance in fact is of a different character, and the case of a man who knows (as did the accused in the present case), that what he is purporting to sell as dangerous drugs is nothing of the kind. Thus, the 1980 Ordinance also amended Subsection 1 of Subsection 4 by making it an offence for anybody to traffick in a substance which he believed to be a dangerous drug. Penalties available for that offence at the very heavy penalties provided for trafficking in the actual drug.”

The maximum sentence provided by Section 4A is 7 years’ imprisonment. The narcotics involved in Charge 2 is 310 grammes, and PW1 paid $13,500 for something which was valueless. Had it been an actual trafficking charge, D3 would be looking at a starting point of 9 years’ imprisonment. If he had been charged under Section 4(1)(a) for trafficking in a substance held out by him to be a dangerous drug, the approach would be that:

“The court should indeed look at the sentence which otherwise would be imposed for trafficking in the drugs which the offender believed he possessed, for his moral culpability remains the same, but the court should at the same time accord a reduction, in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to an ultimate consumer.” Paragraph 13, Li Oi Yee.

The present charge being one of Section 4A, I have been referred to the case of HKSAR v Chiu Wai Lun and others HCCC 46/2012, where one of the charges was also a Section 4A offence. McWalters J, in imposing a starting point of 2 years, took into account that the quantity of bogus drugs was half a kilogramme of ice for $155,000. The drugs involved in respect of Charge 2 was 310 grammes of ketamine. I also adopt a starting point of 2 years, and giving D3 the full one-third discount for his guilty plea, he goes to prison for 16 months.