HKSAR v. WANG LITING

DCCC 568/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 568 OF 2016

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Reasons for Sentence

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1.  The defendant pleaded guilty to a total of four charges and was convicted accordingly.

The Prosecution Case

2.  At about 9:30 pm on 25 March 2016, the defendant entered Hong Kong via Lowu Terminal.  She walked past the green channel which indicated nothing to declare in the arrival hall of the control point. The defendant was intercepted and brought to the baggage examination counter for examination. 

3.  A total of 311 dutiable cigarettes were found in one of the defendant’s bags.  The customs officer arrested the defendant and later seized 292 cigarettes (P1 and P2).

4.  Subsequently, the defendant was brought to the interview room for further investigation.  Upon search of the defendant’s bags, the following items were found:

(1) two straws, one plastic cap, two glass tubes, six plastic tubes and three joint parts containing dangerous drugs ‘Ice’ (P4);

(2) one plastic bottle containing ‘Ice’ (P5);

(3) one black pouch (P3) which contains P4 and P5;

(4) one plastic straw and one paper packet containing ketamine (P6);

(5) one plastic bag containing ketamine (P8);

(6) one cigarette metal box (P7) containing P8;

(7) one set of glass-ball-shaped object and a number of tubes (P10);

(8) one paper bag (P9) containing P10;

(9) one mobile phone;

(10) cash of HK$790 and RMB$659.

5.  Under caution, the defendant admitted that P6 and P8 contained ketamine and P10 was for consuming ‘Ice’.  The defendant said all the drugs were for her own consumption.  Subsequently, in the video-recorded interview, the defendant further admitted, inter alia, that:

(1) She purchased all the cigarettes shortly before she passed Customs.

(2) She did not declare the cigarettes to Customs and had no import licence.

(3) P4 belonged to the defendant and it was ‘Ice’. The straws and the glass tubes were for consuming drugs.

(4) P6 contains ketamine. The white powder in the straw is ketamine.

(5) The plastic bag (P8) inside the metal box (P7) contains ketamine. The defendant bought the drugs for RMB$1,200 and said the drugs were for her own consumption.

(6) She bought P10 for consuming ‘Ice’.

6.  Subsequent chemical analysis reveals that:

(1) P4 contains a total of 0.08 gramme of a solid containing methamphetamine.

(2) P5 contains 0.77 gramme of a crystalline solid containing 0.76 gramme of methamphetamine hydrochloride, ‘Ice’.

(3) P6 contains a total of 0.25 gramme of a powder containing 0.21 gramme of ketamine.

(4) P8 contains 13.7 grammes of a powder containing 11.6 grammes of ketamine.

7.  The prosecution also submitted the Chemist Certificate (MFI-1) and the photo album (MFI-2).

Mitigation

8.  Defence counsel submitted a folder containing various documents for mitigation purpose (MFI-3).

9.  The defendant, who is aged 35, had a clear record in Hong Kong.  She obtained a diploma on tourism management back in 1999 in Chongqing, China.  She was engaged in dried seafood and birds’ nest business and has a few properties in China.  She also invested in estates and has financial means.  Her current boyfriend, Cheung, gave her about RMB$30,000 per month.  She usually came to Hong Kong twice a month and would stay with her boyfriend.  The medical report dated 19 August 2016 shows that the defendant had positive result to amphetamine.  The prosecution informed the court that there was no ketamine test done. 

10.  It was submitted that the defendant started to consume ketamine in 2014 and then ‘Ice’ in 2015.  She spent about RMB$2,000 on drugs.  Defence counsel also said the ‘Ice’ so seized was a kind of ‘bonus’ for the defendant when she bought the ketamine.

11.  It was further submitted that the level of sophistication in this trafficking was low.  The drugs were all for her own consumption.  The defendant is the only child in the family.  Her parents are devastated by this incident, and they came to Hong Kong to visit the defendant nearly twice a month.  The defendant’s parents and the defendant’s boyfriend are in court today to support the defendant.  The defendant is truly remorseful, and in fact it can be said that the defendant was lucky to be caught in Hong Kong.  Otherwise, the defendant is heading towards self-destruction.

12.  In the mitigation folder, it encloses mitigation letters from the defendant, the defendant’s parents, defendant’s boyfriend and CSD chaplain Mr Ng from Permanent Deacons Office.

Sentence

13.  It is a sad story to see that a young and rather successful businesswoman who is affectionately cared for by her parents and boyfriend perpetrated the present crime.  She just took the chance to smuggle the drugs and the cigarettes into Hong Kong.  I agree that what the defendant did was walking along a path of self-destruction which destroys not just her physical health but also her well-being as a whole. 

14.  In her mitigation letter, the defendant promised that she would quit the drug habit and has learnt a hard lesson in her life. She was lost but is now grateful that she learnt to be a responsible person again.  She is disheartened to see the sadness of her parents because of her irresponsible behaviour.  The defendant’s retired parents in their letter wrote that the defendant was influenced by bad peers and started to be a drug abuser.  They have confidence that their daughter has learnt a big lesson and will not touch drugs again.  The defendant’s boyfriend said he started to date the defendant in 2013 and considered the defendant a filial daughter.  He gave the defendant RMB$30,000 per month.  He intends to marry the defendant upon her discharge from prison.  Mr Ng from Permanent Deacons Office wrote that the court would give her the chance as the defendant has the desire for a change and to start a new life.  

15.  I would not speculate whether the defendant had similar activities when she came to Hong Kong on previous occasions.  I would sentence the defendant on the basis of the Summary of Facts that she admitted.

16.  When asked, the prosecution informed the court that in relation to the cigarettes, the tax duty amounted to $556, and the estimated street value of the ketamine was about $1,900 and the ‘Ice’ about $260-odd.

17.  From the seizure of the exhibits and apparatus, I accept that this is a case of trafficking in dangerous drugs by importation. There was no allegation nor admission that part of the drugs so seized were for social trafficking.  As such, this can provide a strong mitigating factor: see HKSAR v Chow Kam Lung [2010] 6 HKC 49 and HKSAR v Ngai Ho Ting [2013] 4 HKC 547.  In the latter case, the appellant was found to have 5 grammes of ‘Ice’ when he returned to Hong Kong from China.  The Court of Appeal eventually imposed an imprisonment term of 2 years and 3 months.

18.  In normal circumstances, trafficking in ketamine with the quantity from 10 grammes to 50 grammes will attract an imprisonment term of 4 to 6 years.  As regards ‘Ice’, the sentencing range will be from 3 years to 7 years for a quantity below 10 grammes.

19.  The most serious charge in the charge sheet is Charge 3.  I will take a global approach and use ketamine as the main drug on which the sentence will be based.

20.  I accept that the defendant is genuinely remorseful and would turn a new leaf upon discharge.  It was said that the defendant obtained the drugs in China.  As I said earlier, the defendant is ‘lucky’ to be caught in Hong Kong for the drugs offence.  Had she been caught in China, she might have to face a stiffer punishment.  I am sure that with the immense support from her parents and boyfriend, the defendant would walk away from this self-destruction path and transform herself to be a responsible, caring and law-abiding person.

21.  Taking all factors into consideration, I will sentence the defendant as follows:

(1) Charge 1 - the quantity of the dutiable cigarettes is only 292 pieces. I would fine the defendant for a sum of $1,500.

(2) Charge 2 - the maximum sentence is a fine at level 1. I would fine the defendant $1,500 also. Hence, the total fine for these two charges is $3,000 which is to be paid within 14 days, failing which 1-month imprisonment term will be imposed.

(3) Charge 3 - the ketamine involved is 11.81 grammes. I would use 4 years as the starting point for all the dangerous drugs particularised in the charge. I accept that this offence can be seen as trafficking by importation for which I would allow a generous discount for this kind of ‘technical trafficking’ offence. The defendant’s plea will allow her to have one-third discount which will reduce the sentence to 32 months. I consider that the latent risk factor, if any, is small, even though such a factor is usually employed in the simple possession case. In light of the strong mitigating grounds, I will further reduce the sentence by 15 months. Accordingly, I sentence the defendant to 17 months.

(4) Charge 4 - I have considered the case HKSAR v Poon Chi Wai HCMA 491 of 2004 and there was no aggravating factor in this case. I would adopt 3 months as the jail term and reduce it to 2 months because of the plea. I also take a lenient view and order that this sentence is to be served concurrently with the sentence for Charge 3.

22.  In summary, I sentence the defendant to an imprisonment term of 17 months and a fine of $3,000 with 1‑month imprisonment term if in default.