HKSAR v. MA LIN

HCCC 393/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 393 OF 2015

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

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COURT: I don’t propose to keep you in suspense. You are going to prison for 5 years and 6 months. When I have left court, Ms Cheung will explain to you when you are likely to be released in view of the time that you have spent in custody on remand.

By your plea of guilty to count 2, you accept that your previous claim that you knew nothing about the heroin found in your room was untrue. There is no direct evidence of where you were in the distribution chain, but the paraphernalia found in your room following your arrest suggests that you were weighing the heroin and packing it into small bags yourself. Indeed, that is what you admit you were doing.

There is some evidence that you may have been more heavily involved than you admit, namely, the evidence that heroin was found on you in the lift lobby in the building in which you lived, but that may just have been because the heroin you were given to weigh and pack was given to you away from your home. In any event, since the heroin found on you away from your home was the subject of count 1 to which you pleaded not guilty, and since the prosecution is content for that count to remain on the file without you facing trial on it, I do not take that evidence into account. You therefore have to be sentenced on the basis that your trafficking in this heroin consisted of weighing and packing into small bags the heroin which you had been given for that purpose and was found in your room.

You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in heroin. The guidelines are based on the amount of heroin involved, although the court does not look at the weight of the heroin as a whole. It focuses on the narcotic content of the heroin. The weight of the narcotic content of the heroin in your case was 85 grammes. I do not know whether this was the first time you had been given heroin to weigh and pack. It would have been particularly bad luck if you had been arrested on the first occasion when this happened. I acknowledge that if this was not the first occasion when you had done that, had you been arrested a week earlier or a week later, the amount of heroin you might then have had in your room might have been very different. It was therefore a matter of chance that on this particular occasion, you happened to have this quantity of heroin in your room. But what you had in your room at the time of your arrest is the only basis on which the court can sentence you.

The guidelines say that the appropriate range for someone who is convicted of trafficking in heroin with a narcotic content of between 50 and 200 grammes, after pleading not guilty, is from 8 to 12 years’ imprisonment. You are the classic low-level link in the distribution chain contemplated by the guidelines and subject to your personal mitigation, there is no reason for departing from the guidelines in your case.

I take into account that you have no previous convictions to speak of, apart from an immigration offence in 2004 for which you received a very short suspended sentence of imprisonment. I accept that you are not and have never been, a drug addict. I note that you divorced your husband a few years ago because of his involvement with drugs, and that your 12-year-old son now lives with his grandmother. I also note your employment history as a nurse and a beauty therapist, as well as your claim that you have learnt a bitter lesson out of all this, and that you find yourself where you are now, unable to see your son grow up for a few years, because your need to get money somehow got the better of you, following the rejection of your claim for social security assistance. Indeed, if what I have been told by Ms Cheung is true, it is ironic that your application for social security assistance was unsuccessful because of the money you had saved for your son. In the light of everything I know about you, including the nature of your trafficking and the amount of heroin you had in your room, I propose to take 8 years and 3 months’ imprisonment as my starting point.

You are entitled to have your sentence reduced by one-third because of your plea of guilty, even though it was tendered on the day your trial was due to take place. That is because the date for your trial had already been fixed by 2 September, when the Court of Appeal created a new regime for giving credit for pleas of guilty. That means that the sentence which I pass on the one count of trafficking in the indictment to which you have pleaded guilty is 5 years and 6 months’ imprisonment.