HKSAR v. WONG KIN LEONG AND ANOTHER

HCCC 23/2019

[2019] HKCFI 1942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 23 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The 1st and 2nd defendants each pleaded guilty to one count of trafficking in a dangerous drug. They pleaded at Eastern Magistracy and agreed the Summary of Facts. They were committed to the Court of First Instance for sentence on 21 January 2019. The 1st defendant pleaded guilty to unlawfully trafficking in 2,083.8 grammes of a mixture containing 1,803.3 grammes of heroin hydrochloride, Charge 1. The 2nd defendant pleaded guilty to unlawfully trafficking in 2,117 grammes of a mixture containing 1,850 grammes of heroin hydrochloride, Charge 2.

On 11 April 2018, at the border of the Shenzhen Bay Control Point, Hong Kong Customs & Excise Officers selected an inbound seven-seater vehicle for routine clearance. Both the defendants were passengers in the vehicle. According to immigration records, they had passed through the border and landed in Hong Kong at 8.37 pm and 8.38 pm respectively. The vehicle was searched and nothing illicit was found.

The defendants were then searched and on the 1st defendant seven packets of white powder were found fixed to his chest, both thighs and legs as well as beneath the insoles of his trainers. The seven packets contained the drugs of Charge 1.

On the 2nd defendant, six bags of white powder were found fixed to his thighs and legs as well as beneath the insoles of his trainers. The six packets contained the drugs of Charge 2.

Under caution both defendants admitted that they knew the white powder was dangerous drugs but did not know what kind of drug. They were both recruited by a Malaysian man and offered 10,000 Malaysian Ringgits to bring the drugs to Hong Kong. They flew from Malaysia after being given the drugs in their hotel room in Kuala Lumpur. They met each other in the hotel room, both recruited as drug couriers to travel together. They flew to Guangzhou together and stayed in a hotel in Lo Wu before travelling to Hong Kong. It was arranged by the recruiter that they would board a seven-seater vehicle in the evening of 11 April 2018 to go across the border. The defendants did not know the driver. The 2nd defendant said he would receive a phone call from a Malaysian man when they arrived in Hong Kong who would tell them where to take the drugs.

After their arrest, both were willing to assist in conducting a controlled delivery operation. A controlled delivery operation was initiated and after the 1st defendant received several overseas phone calls and messages from the suspected drug recruiter in Malaysia, it was eventually agreed that someone would collect the drugs from the defendants. They were taken by Customs officers to the proposed guesthouse to await further instructions. They were accompanied by Customs officers. However, no further calls or contact was made after 4 am and the complete controlled delivery operation was called off at 9 am, on 12 April 2018.

The Customs then conducted video-recorded interviews from the defendants separately but under caution both refused to answer any questions.

It was agreed that the estimated street value of the heroin seized from the 1st defendant and the 2nd defendant was about $1,700,380 and $1,727,472 respectively.

Both admit that they were knowingly in possession of dangerous drugs for the purposes of trafficking.

Mitigation

The best mitigation for both defendants is their plea of guilty at the earliest opportunity. Both defence counsel have said all they can say on behalf of the defendants.

The 1st defendant is Chinese, 23 years old and residing in Malaysian. He is a Malaysian passport holder. His young life has been affected by tragedy. His father died when he was three. His grandmother and elder sister died when he was 11. They are survived by the defendant, one sister and his mother. I am told his mother has been greatly affected by these tragedies which I am sure is the case. He is distressed that he has disappointed his mother. The defendant has no connection to Hong Kong and was tempted by undesirable peers to deliver drugs to Hong Kong for a monetary reward.

All that can be said has been said in mitigation. I have received and read several mitigation letters from the defendant, his family, a Reverend Peter Wong and a Pastor from the Christian Living Word Life Fellowship. Mr Wong, on behalf of the 1st defendant, has suggested I take into account that he will suffer an element of hardship because his family live in Malaysia. No one will visit him regularly for a long period of time. True as that may be, this has been held not to be a mitigating factor that will attract any further discount.

The 2nd defendant is also Chinese and 23 years old, residing in Malaysia. He, too, is a Malaysian passport holder. He, too, has no connection to Hong Kong and was unemployed at the time so tempted by an advert on Facebook to make quick money to deliver drugs here for a monetary reward. He is single and the youngest of five children. All his family are living in Malaysia. I have heard in mitigation that he comes from an impoverished background and was led astray at a young age. He mixed with the wrong company, according to Reverend Peter Wong, who contacted the defendant’s family and has been guiding him since his remand.

I have considered the mitigation letters put forward on his behalf. I have considered the fact that both defendants have a clear record in Hong Kong. However, that carries little weight since they are not Hong Kong residents. I have received several letters on behalf of the defendants from Father Wotherspoon who works tirelessly to fight international drug-trafficking.

I will not repeat the contents of those letters, but both defendants have tried to offer assistance and, in particular, the 2nd defendant with more specific detail that has led to information for the Malaysian police to investigate further and to spread the word amongst the Malaysian public about the dangers of trafficking. It is in the public interest to encourage a prisoner to assist in this manner or in any manner.

I have referred myself to HKSAR v Kilima Abubakar Abbas, CACC 143/2016, where in the judgment dated 18 September 2018, the majority of the Court of Appeal said in no uncertain terms that in sentencing a judge was entitled to afford a defendant a discount of 3 months’ imprisonment for this factor of mitigation. That level of discount is to be regarded as the maximum discount to be afforded in similar circumstances. The Court of Appeal are of the view that any discount for this factor, if it is to be considered at all, should be no more than a token one.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment a person is liable to a fine of $5 million and life imprisonment. The authority of R v Lau Tak Ming & Ors [1990] 2 HKLR 370 sets out the Court of Appeal guidelines for trafficking in heroin. However, it did not cover such a large quantity of heroin as in this case. The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of narcotics.

The Court of Appeal has held that where between 1,200 to 4,000 grammes of heroin is trafficked, then a starting point of between 23 years to 26 years would be appropriate. Here mathematically speaking, 1,803.3 grammes as well as 1,850 grammes of heroin, would attract the same starting point of 23 years and 8 months.

It is well established that the sentence and starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotics concerned, calculated by a mathematical approach and that the mere fact that the defendants were only drug mules or couriers is not a good reason for departing from that mathematical approach. I have referred myself to HKSAR v Kilima Abubakar Abbas.

In addition, the offence is aggravated by the presence of an international element; in that, the heroin was imported by the defendants into Hong Kong from Malaysia. According to the broad guidelines laid down in the Court of Appeal in HKSAR v Chung Ping Kun [2014] 6 HKC 106, for the presence of the international element an offence for trafficking in over 1,000 grammes of heroin should be enhanced by not less than 2 years. The above guidelines is not a straightjacket and although the quantities involved here are more than 1,000 grammes, I consider the enhancement for the international element in the present case should be 2 years.

Both defence counsel submit that there was the mitigating factor of a genuine offer of assistance in the form of a controlled delivery operation. I have taken into account the authority of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, where assistance to authorities is encouraged. In particular, I quote from paragraph 48:

“This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities. His assistance has been helpful but for one reason or another it is not assessed to be of particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.”

The Court of Appeal continued, at paragraph 49:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the prearranged meeting place perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the cooperating defendant is, therefore, both limited and unfruitful. Notwithstanding the assistance possesses these features, a discount is given in order to encourage other offenders to similarly cooperate with our law-enforcement agencies.”

In HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal declined to specify a discount which might be given for an unsuccessful controlled delivery operation. They said, I quote from paragraph 33:

“Neither a straightjacket approach nor the application of a percentage discount range is desirable because the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases. Such factors will include:

(1) the nature and effect of any voluntary participation;

(2) the outcome of the assistance. Was it successful in bringing to justice persons who would not otherwise have been brought to justice;

(3) the degree or extent of assistance which has been provided; and

(4) the degree of risk to which the defendant has exposed himself or his family.

It is a matter within the discretion of judges how these and other possible factors affect the discount to be accorded a defendant in a particular case. Accordingly, we do not accede to the invitation to lay down guidelines for such assistance.”

They go on, at paragraph 35:

“As we say, every case is different and we do not accept that there can be a fixed percentage discount applied to all or even similar cases.”

In this case, defendants’ assistance was confined to their participation in a failed controlled delivery operation. Significantly, however, they declined to follow the matter up by answering any questions during a video recorded interview. This makes their assistance limited. There was also no significant element of risk to themselves by doing what they did and none was suggested in mitigation. I will not ignore their attempt to assist. In fact, it should be encouraged but their additional discount above the usual for an early plea will not be significant.

After taking into account all mitigation, all aggravating factors and mitigating factors, as well as the facts of this case, I will take a starting point of 23 years and 8 months for both Charges 1 and 2 and enhance it by 2 years for the international cross-border element. I will reduce that by 3 months for the mitigation presented by Father Wotherspoon. The starting point becomes one of 25 years and 5 months. I will apply a discount of 38 per cent to take into account the assistance they tried to give and of course to reflect their plea of guilty at the earliest opportunity I reduce that starting point to 15 years and 9 months.

The 1st defendant, for Charge 1, you are sentenced to 15 years and 9 months.

The 2nd defendant, for Charge 2, you also are sentenced to 15 years and 9 months’ imprisonment.