HKSAR v. YUEN MUNG KI

HCCC 98/2018

[2018] HKCFI 2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 98 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 19 March 2018, you pleaded guilty before a magistrate at the Eastern Magistracy to a charge of trafficking in a dangerous drug. You admitted that on 6 May 2017, at the Customs arrival hall at the Shenzhen Bay Control Point, New Territories, you unlawfully trafficked in 502 grammes of a solid, containing 435 grammes of cocaine.

On that day, at about 9.10 pm, customs officers intercepted you at the green channel, or nothing to declare zone, of the Customs arrival hall of Shenzhen Bay Control Point, upon your arrival from the mainland. At that time, you were carrying a purple handbag. Found inside the handbag were the drugs as stated in the charge contained in 21 plastic packets. When you were asked what the substances were, you replied that it was jade. You were arrested and cautioned for trafficking in a dangerous drug, and you then also said the bag contained jade. When you were informed that it was cocaine, and whether you had any explanation, you said you did not know.

You, however, agreed to participate in a controlled delivery operation. You communicated via WhatsApp to the recipient to collect the dangerous drugs. No one came to collect the drugs after going to several locations for the drop off, resulting subsequently in the controlled delivery operation being called off. In a written interview, you informed the Customs, that you had gone to the mainland at around 6 pm that day to collect these goods. You then collected them in China and brought them back into Hong Kong. You would receive a reward of $2,500. Your travel movement record showed that you left Hong Kong to the mainland via Lo Wu at 1853 hours on 6 May and returned the same day, a few hours later, via the Shenzhen Bay Control Point at 2109 hours. You now admit and accept that you knowingly possessed all the dangerous drugs particularised in the charge for the purpose of unlawful trafficking.

The estimated market retail value of the drugs seized was $484,430.

At the time of commission of this offence, defendant, you were 22 years of age. You are now 23. You have a clear criminal record. You have studied up to Form 4 and completed schooling in 2011. Prior to your arrest, you were unemployed, but before that, you were working in a hair salon, earning $11,000 a month. You are married, but Mr Kevin Chan, your counsel, tells me that your husband is from mainland, and in effect, soon after you were married you were effectively separated. I’m informed the reason for you committing this offence is that you were unemployed at the time and you needed money. Mr Chan has said you have previously been a law-abiding citizen and this was out of character and you have clearly been led astray by people around you for a very small reward, for such a serious offence.

Through your plea of guilty, you expressed that you are truly sorry for committing the offence. It is a true shame that someone like yourself, with a clear record, at such a young age is involved in a very, very serious offence. It appears to me now, at least, that there is much in the media drawing the fact that these drug traffickers are using youngsters like you who are naive to traffic in dangerous drugs, but youth is not a mitigating factor here when it comes to these very serious offences. The strongest mitigating factor is of course your very early plea of guilty.

The Summary of Facts did not particularise what happened in the controlled delivery, however, Ms Lilly Wong, Senior Public Prosecutor, has informed me of the events that happened. What I am informed is that at about -- soon after you were arrested, you received a phone call from the recipient of the drugs and it was not until some 12.25 am, some 3-odd hours later, that you were escorted to a location to meet the recipient. However, between the time you were arrested to the time of your participation in the controlled delivery, I am informed that the recipient kept contacting and you kept contacting the recipient about the goods.

The delivery location was at Sheung Shui, however, no one came to collect the drugs. It may be, as Mr Chan rightly says, that someone suspected that there was something wrong, and therefore did not come and collect the drugs. The time taken to deliver the drugs from Shenzhen Bay Control Point to Sheung Shui was approximately 3 hours. It appears to me not surprising that somebody who is there to collect the drugs would suspect that something was untoward, given that it was a 3-hour period and that Sheung Shui is so close to Shenzhen Control Point. This controlled delivery operation was of course fruitless.

I am, however, of the view that the defendant did participate in this practical engagement and exercise in attempting to pass the drugs over to the recipient. The failure of somebody coming to collect the goods was not entirely the defendant’s doing. I am of the view that the defendant ought to be given some small credit for her preparedness to assist in securing the apprehension of the person in Hong Kong to whom the drugs were to be delivered to, and this is what the Court of Appeal did in HKSAR v Jardin Rodela Maningas CACC 278/2011.

I am, however, aware of the decision of, I am going to cut this short, HKSAR v Darlington CACC 78/2015, where the Court of Appeal there laid down factors to which a sentencing judge should have regard when dealing with assisting the authorities in a controlled delivery. That is stated at paragraph 33 of that judgment.

Defendant, you were trafficking in 435 grammes of cocaine. The guideline case for trafficking, tariff case laid down, is in Lau Tak Ming. For trafficking in amounts between 400 and 600 grammes of cocaine, the starting point after trial would be one of between 15 to 20 years’ imprisonment. Had you been convicted after trial, I would have taken a starting point of 15 years and 9 months’ imprisonment. There is an aggravating factor in this case in that you were bringing the drugs into Hong Kong, importing them into Hong Kong, and the Court of Appeal have laid down an enhancement should be made to the starting point. I enhance the starting point by 9 months’ imprisonment.

That would make the sentencing point, had you been convicted after trial, one of 16 years and 6 months’ imprisonment. You have pleaded guilty at the earliest opportunity. You are therefore awarded the one-third discount and your sentence will then be reduced to that of 11 years’ imprisonment.

I shall give you a small discount for your participation in the controlled delivery, and you shall be sentenced to 10 years and 9 months’ imprisonment.