HKSAR v. CHAN HO KI

HCCC 46/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 46 OF 2016

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

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COURT: The defendant, Chan Ho-ki, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts disclose that on 29 May 2015, at the Arrival Hall of Lok Ma Chau Control Point, a male, Law Ka-shun, was intercepted by customs officers. A search of his shoulder bag yielded a bag containing what was later confirmed to be 985 grammes of a crystalline solid containing 983 grammes of methamphetamine hydrochloride. Law disclosed to the officers that his girlfriend was waiting for him at the coach pickup area. Law’s girlfriend was in fact the defendant in this case.

After the defendant was intercepted, a search of her shoulder bag yielded what was later confirmed to be 985 grammes of a crystalline solid containing 981 grammes of methamphetamine hydrochloride, with a street value of $388,090.

The defendant was arrested. Under caution, she admitted the 'Ice' in her bag was given to her by someone called Ah Keung in a hotel in Shenzhen and she was instructed to place the ‘Ice’ inside a locker at Festival Walk. Ah Keung would then transfer $3,000 into her bank account. The defendant agreed to take part in a controlled delivery operation but it turned out to be fruitless.

During a video-recorded interview conducted subsequently, the defendant gave details of how Ah Keung texted her by WhatsApp and offered her $3,000 to bring tea leaves to Hong Kong. She went to meet Ah Keung with her boyfriend and they gave their bags to Ah Keung for the latter to put tea leaves and ‘K’ inside their bags. She was instructed to place the bag inside a locker in Festival Walk and to send a photo of the locker’s password to Ah Keung, then $3,000 will be transferred into her account.

The defendant is 28 years old. She has a clear record, studied up to Form 3 level and had worked as a waitress earning $12,500 a month.

Mr Chau, mitigating on behalf of the defendant, informed me that the defendant admitted she knew it was ‘Ice’ inside the bag and it was a slip of her tongue when she said that it was ‘K’ that was put into the bag during the video-recorded interview.

Mr Chau stressed the extent of assistance given by the defendant by referring to the statement made by the customs officer concerned. It can be seen that the defendant actively took part in the operation, having telephone conversation and text messages with the person on the other side of the line. When that person, who was not Ah Keung, expressed doubt as to the defendant’s act, the defendant made excuses and tried to lure the other person into believing that ‘Ice’ would be delivered. Unfortunately, that person did not bite the bait and did not come to collect the ‘Ice’. The controlled delivery therefore was unsuccessful.

Mr Chau further submitted that the defendant was willing to take part in the controlled delivery despite being warned by the customs officers that she might not get any discount by doing so. I was also informed that the defendant had given an NPS, a non-prejudicial statement, and was willing to give evidence against her boyfriend, Law.

After making some inquiries, I understand that her NPS was never served on her boyfriend, so his plea had nothing to do with her offer to give evidence.

Trafficking in a dangerous drug is a serious offence. A person convicted on indictment of trafficking in a dangerous drug is liable to a fine of $5 million and to life imprisonment.

The Court of Appeal has set down guidelines for the trafficking of ‘Ice’ in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.The quantity of ‘Ice’ involved here is 981 grammes. Trafficking between 600 to 1,200 grammes of ‘Ice’, the starting point is between 20 to 23 years.

After considering the circumstances of the offence, the defendant’s role and her background, I am of the view that a starting point of 21 years is appropriate here.

This case involved cross-border trafficking so an enhancement is called for. The quantity of ‘Ice’ is almost 1,000 grammes. After considering the case of HKSAR v Chung Ping Kun, CACC 85/2014, I am of the view that an enhancement of 2 years is appropriate here.

The defendant pleaded guilty at the earliest available opportunity and I will give her the full one-third discount. The defendant took part in a controlled delivery which turned out to be fruitless. Having considered the circumstances of the controlled delivery, I am satisfied that the defendant had actively taken part and had done all that she could to assist.

Bearing in mind that it is important to encourage arrested person to render such assistance, a further discount is warranted. See the case of HKSAR v Gopal Muthusamy, CACC 238/2010 (unreported) and HKSAR v Jardin Rodela Maningas, CACC 278/2011 (unreported). With an enhanced starting point of 23 years, giving a one-third discount, the sentence would have been 15 years and 4 months’ imprisonment. I am satisfied that in the case of this defendant, a further discount of 21 months is warranted which makes a total discount of just about 41 per cent.

For the offence of trafficking in a dangerous drug, the defendant is sentenced to 13 years 7 months’ imprisonment.