HKSAR v. LIU MAN WAI

HCCC 491/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 491 OF 2016

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT:

The defendant had pleaded guilty in the Magistrates Court to one count of trafficking in a dangerous drug, namely 1.89 kilogrammes of methamphetamine hydrochloride. He had also pleaded guilty to the 2nd charge of possession of dangerous drugs, namely 0.72 grammes of a powder containing 0.36 grammes of ketamine, 4.15 grammes of a crystalline solid containing 4.09 grammes of methamphetamine hydrochloride and 0.24 grammes of cannabis in herbal form. The defendant was committed to this court for sentence.

The facts reveal that the defendant, at about 5.10 pm on 2 February 2016, was seen by customs officers getting off a cross-boundary coach at Shanghai Street, Mong Kok. He was intercepted and searched and, inside his backpack, were found the drugs the subject matter of the 1st count. A key was also found in his jeans pocket. Whilst being interviewed under caution, the defendant told the officers that the key was to his residence in a building in Mong Kok where he lived with his girlfriend.

The defendant was taken to his home for a house search and in his home were found the drugs which are the subject matter of the 2nd charge. Also found at the same time in his premises was an electronic scale, a plastic bag containing wads of resealable plastic bags, a box of aluminium foil and two rolls of black adhesive tape.

Upon arrest and under caution, the defendant said the drugs and paraphernalia found in the flat belonged to him and that the drugs found in the flat were for his own consumption.

The estimated market retail value of the drugs seized was HK$589,194.81.

The travel movement records show that the defendant had left Hong Kong via Lok Ma Chau on 2 February 2016 at 0551 hours and returned to Hong Kong via Lok Ma Chau on the same day at 4.30 pm.

The defendant is aged 51 and has five previous convictions. Three are drug related but not for trafficking. He was last discharged from Correctional Services custody from the Hei Ling Chau Addiction Treatment Centre in 2013. The defendant claims that he is a drug abuser.

Mr Ma correctly pointed out that as far as the 2nd charge is concerned, the quantity is insignificant compared to the quantity in the 1st count. If the 2nd charge had been for trafficking, adding the amount which was found in the home to the 1st count would not result in much of a difference in sentence, and to that, I agree. So his submission is that a concurrent sentence should be imposed in relation to Count 2.

As for the drugs in Count 1, the sentencing guideline has been laid down by the Court of Appeal in Abdallah in 2009 where the Court of Appeal suggested that a guideline sentence of 23 to 26 years’ imprisonment is appropriate for trafficking in between 1,200 to 4,000 grammes of drugs and the guideline sentence is for sentences after trial. In Count 1, the amount is 1.89 kilogrammes so, as Mr Ma correctly pointed out, that would give us a starting point of 24 years’ imprisonment.

Considering the enhancement matter, as Mr Ma very openly indicated, although the circumstances are highly suspicious, nevertheless, it is a fact that the bus from which the defendant was seen coming down from had gone through the Lok Ma Chau Control Checkpoint and the passengers on the bus had to go through the Customs and Immigration control at the checkpoint. However, it does not seem that the drugs were detected at that control point until he arrived in Shanghai Street. So really, the facts do not show, beyond a reasonable doubt, that the defendant had brought the drugs over the border to Hong Kong.

So I will give the defendant the benefit of the doubt; I will not enhance the sentence in this case. The defendant should be sentenced, on the 1st count, to 24 years’ imprisonment, after trial, but because of his early plea, he is entitled to one-third discount.

So on the 1st count, he is sentenced to 16 years’ imprisonment.

In relation to the 2nd count, I consider that a 2-year starting point is appropriate, reduced to 16 months because of his plea, and that sentence will be served concurrently to the 1st count.

So the defendant goes to prison for 16 years.