Defendant pleaded guilty before me and was convicted upon him admitting the Summary of Facts. The Summary of Facts shows that the defendant is a Mainland national and he arrived in Hong Kong at 1024 hours on 23 May 2017 on a two-way permit. He was permitted to remain in Hong Kong until 30 May 2017.
The defendant checked into the Regal Riverside Hotel in Shatin for one night. At 2000 hours on the same day, the defendant was intercepted by two police officers at Kong Pui Street in Shatin. The defendant was then carrying a “Coach” shoulder bag and a sealed carton box. The police found a grey bag described as “Bamboo Charcoal” containing 200 grammes of ‘Ice’ inside the shoulder bag. And 60 bags of similarly labelled bags were found inside the sealed carton box. Nine of these 60 bags contained ‘Ice’. Of course, it is the drug ‘Ice’. After the substance was found inside the shoulder bag, the police asked the defendant what the substance was and the defendant replied in Cantonese, “‘Ice’ drug.”
The defendant was arrested. And under caution, he remained silent. At the time, the defendant had in his possession HK$5,400 and RMB113, two mobile phones.
Later analysis confirmed the 10 bags contained 1,999 grammes of a crystalline solid containing 1,992 grammes of methamphetamine hydrochloride, that is, ‘Ice’.
The street value of the ‘Ice’ seized was estimated to be HK$623,688.
The defendant admitted he was unlawfully trafficking the ‘Ice’ found in his shoulder bag and the carton box at the material time.
Background and mitigation
The defendant was born in 1970. He is now 51 years of age. He has a previous conviction of assaulting a police officer and was sentenced to 8 weeks’ imprisonment in 2017. According to the antecedent statement, he was educated up to Primary 6 level and worked as a cleaner in the Mainland.
Mr David Iu, counsel for the defendant, in his written submission submitted that the defendant was of clear record here in Hong Kong and in the Mainland. Clearly the assertion that the defendant had a clear record in Hong Kong is incorrect. Mr Iu submitted that the defendant was working as a part-time table tennis and badminton coach with a monthly income of around RMB2,000. That again is different from what the defendant told the officer in the antecedent statement.
I was provided with more personal information of the defendant. He is married. His wife works as an insurance agent. And the two of them have a 17-year-old son who is a student. Mr Iu submitted that the defendant was a responsible son, husband and father who cares for his family. He committed the offence due to financial pressure.
Mr Iu submitted that a starting point of 24 years would have been appropriate, citing the case of HKSAR v Abdallah. He cited the authority of HKSAR v Ng Chun To Raymond and submitted that in general, a successful appellant should not receive a longer sentence after conviction on a retrial than what he or she received at the original trial. Mr Iu agreed that this starting point should be enhanced to take into account the fact that the defendant was a visitor offender, citing the case of HKSAR v Montoya Munoz Mauricio.
As to the defendant’s guilty plea, Mr Iu submitted that he should be entitled to a 25 per cent discount, citing certain paragraphs of the case of Ngo Van Nam.
Consideration of the sentence
Offences involving dangerous drugs are serious, particularly when the offence involved the trafficking of dangerous drug. A person convicted on indictment of this offence is liable to a fine of $5 million and to imprisonment for life.
According to the case of Tam Yi Chun, trafficking almost 2 kilogrammes of ‘Ice’, in accordance with the guidelines set down in the case of Abdallah, the starting point is one of 23 to 26 years as it is within the band of 1.2 kg to 4 kg.
For the trafficking of almost 2 kg of ‘Ice’, the notional starting point for the defendant, who would appear to be a courier in the absence of any evidence that he is in higher rank of this drug-trafficking enterprise, is one of 23 years and 9 months. This sentence should be enhanced by 2 years on the basis that either the defendant brought the drug into Hong Kong from the Mainland, so there is an international element, that is the case of Abdallah, or that the defendant entered Hong Kong in order to commit such a serious crime of trafficking in a large quantity of ‘Ice’. For the latter part, I refer to the judgment of the Court of Appeal in the case of Mauricio.
The Court of Appeal referred to a couple of cases to say that it is a serious aggravating factor to come to Hong Kong for the specific purpose of committing an offence or offences. Those two cases are HKSAR v Norena Gutierrez Cristhian Andres and HKSAR v Li Yonghong. The Court of Appeal noted that, however, there was no comparative analysis on the appropriate quantum of enhancement among the decided cases. The Court of Appeal found it both practical and conceptually acceptable to make reference to the scale of enhancement for those who were caught bringing heroin, cocaine or ‘Ice’ into Hong Kong, adopting the case of Chung Ping Kun.
In the case of Chung Ping Kun, the case dealt with the appropriate enhancement for dangerous drug less than 1,000 grammes, that is 1 kilogramme, after the Court of Appeal in Abdallah dealt the issue of enhancement for international element when the dangerous drug trafficked was above 1 kg. So in Chung Ping Kun, for the quantity between 500 to 1,000 grammes, the appropriate enhancement is 1 to 2 years. So the correct enhancement for the defendant coming to Hong Kong to commit such a serious crime is therefore also 2 years. So with this enhancement, the starting point is one of 25 years 9 months.
Now, the question of discount for the defendant’s plea. This plea comes very late. The defendant denied his involvement during an earlier trial and his conviction was quashed by the Court of Appeal, and a retrial was ordered. The defendant pleaded guilty after hearing dates had been fixed for the retrial but before the CMH. Actually I should say that the indication was made before the CMH but it was done on the day originally set down for the CMH. I am satisfied that a discount of around 25 per cent is appropriate. So with a starting point of 25 years 9 months, a discount of 25 per cent would yield 231.75 months. Translating this into years and months, it would become 19 years and 3.75 months. I have already said that a discount of about 25 per cent is appropriate. In all the circumstances of this case, I am of the view that a sentence of 19 years and 4 months appropriate one.
So the actual sentence. For the offence of trafficking in a dangerous drug, the defendant is sentenced to 19 years and 4 months’ imprisonment.