CRIMINAL CASE NO. 302 OF 2010
COURT: There were six counts of conspiracy to traffic in a dangerous drug on the indictment.
The 1st accused faced all six counts; the 2nd accused, all but the 2nd count; and the 3rd accused, the 5th and the 6th counts.
The 1st count related to the initial recruitment of Pang Chun‑kit, “Ah Kit”, a 15-year-old boy, to traffic “Ice” from Shenzhen to Hong Kong, and a demonstration to “Ah Kit” of how to conceal the “Ice” on one’s person.
The 2nd, 3rd and 4th counts related to the trafficking of “Ice” from Shenzhen to Hong Kong.
The 5th count related to the trafficking of “Ice” from Hong Kong to Australia.
“Ah Kit” was named as a co‑conspirator in all first five counts.
The 6th count also related to the trafficking of “Ice” from Hong Kong to Australia, but “Ah Kit” was not named as one of the co‑conspirators.
All three accused pleaded not guilty, and after a fairly prolonged trial, the 1st accused was convicted of all counts but the 1st count. The 2nd accused was convicted of all counts but the 1st count, and the 3rd accused was convicted of the 5th count only.
I will relate the facts now. Although the main witness, “Ah Kit”, gave evidence of how he was recruited by “Sang Gor”, the 2nd accused, and introduced to “Fat Gor”, the 1st accused, in early October to smuggle “Ice” from Shenzhen to Hong Kong, and how arrangement was made for him to watch a fitting-out session conducted by someone from the mainland called “Wah Gor”, as the jury have found both the 1st and 2nd accused not guilty of the 1st count, which covered the recruitment and the fitting-out session, for the purposes of sentencing, I will not rely on “Ah Kit’s” evidence of the actual circumstances of the recruitment.
On the other hand, as the 1st accused and the 2nd accused were convicted of all the other conspiracy charges they faced, the only reasonable inference to be drawn from the jury’s verdict is that the jury have accepted the involvement of the 1st accused and the 2nd accused in relation to those counts. That is to say that the 1st accused was the boss of the syndicate and the 2nd accused was actively involved in the syndicate.
According to “Ah Kit”, on three occasions he smuggled “Ice” from Shenzhen to Hong Kong. On the first occasion, he taped “one Key” - that is, one kilogram of “Ice” - on his back, and wore a pair of fake Nike shoes with 650 grammes of “Ice” hidden in the soles. After “Ah Kit” brought in the “Ice”, he retrieved the “Ice” hidden inside the soles of the shoes by cutting open the seams, and he weighed all the “Ice” according to the instruction of the 1st accused. After confirming the weight to be 1,650 grammes, he made delivery to someone he did not know at the lobby of a hotel in Tsim Sha Tsui. That is the 2nd count.
On the second time, he again taped “one Key” of “Ice” on his back. This time there were no shoes. Again, he weighed the “Ice” and confirmed it to be just over 1,000 grammes, and he made delivery to another stranger at the same hotel lobby. After this pull, he was paid $10,000 by the 1st accused via the 2nd accused. That is the 3rd count.
On the third occasion, “Ah Kit” wore another pair of fake Nike shoes with “Ice” inside, and brought the “Ice” in from Shenzhen. He was instructed by the 1st accused not to cut open the seams, and his shoes were taken away by the 2nd accused upon the instruction of the 1st accused. That is the 4th count.
After “Ah Kit” had done three pulls of “Ice” from Shenzhen, he was then asked by the 1st accused whether he “had the guts” to deliver drugs to Australia. The 1st accused promised to pay “Ah Kit” HK$30,000 for the pull. “Ah Kit” agreed.
The 2nd accused, upon the instructions of the 1st accused, passed $15,000 to “Ah Kit” to pay for a plane ticket for Sydney and to change some Hong Kong dollars into 1,000 Australian dollars for “Ah Kit’s” expenses.
“Ah Kit” was originally scheduled to fly out on 10 December 2009. The 2nd accused visited “Ah Kit” in the early hours of 10 December and gave “Ah Kit” a pair of shoes with “Ice” hidden inside to wear. The 2nd accused also checked “Ah Kit’s” ticket and travel documents to make sure everything was in order.
When “Ah Kit” set off for the airport wearing the shoes with “Ice” inside, the seam of one shoe suddenly burst open, exposing the packet inside, even before “Ah Kit” managed to walk to get a cab. The trip had to be aborted. “Ah Kit” was reprimanded by the 1st accused, who accused “Ah Kit” of causing the whole line to come to a halt. The 2nd accused came and retrieved the shoes and the Australian money from “Ah Kit”.
The trip was later rescheduled to 1 January 2010. On the day of departure, the 2nd accused again paid “Ah Kit” a visit at “Ah Kit’s” home. The 2nd accused gave “Ah Kit” the same pair of shoes with “Ice” inside - this time with the seams firmly stitched together - and the Australian $1,000. The 2nd accused again checked “Ah Kit’s” ticket and travel documents to make sure everything was in order.
“Ah Kit” encountered another problem when he went to check in at the airport. As he was an unaccompanied minor, the airline required a waiver signed by “Ah Kit’s” parents or legal guardian before “Ah Kit” could board the plane. The 2nd accused forged the signature of “Ah Kit’s” father, and faxed the waiver back to the airline.
“Ah Kit” thus was able to board the plane, and finally arrived in Sydney on 2 January 2010. “Ah Kit’s” job did not end after he successfully brought the “Ice” to Sydney from Hong Kong. There in Sydney, according to the instructions given by the 1st accused, “Ah Kit” was engaged in delivering “Ice” to someone codenamed “Ah Leung” and receiving a total of Australian $90,000 from this “Ah Leung”. Furthermore, “Ah Kit” was instructed to meet a man at the Four Seasons Hotel and receive a pair of shoes with “Ice” hidden in the soles. “Ah Kit” was instructed to travel to Brisbane from Sydney by train in order to deliver the Australian $90,000 he received from “Ah Leung” to that same man “Ah Kit” had met at the Four Seasons Hotel, after being told he could keep Australian 1,000 for his own expenses.
After “Ah Kit” returned to Sydney after the Brisbane trip, the “Ice”, which he had stored in a safe inside the hotel room, went missing. The 1st accused accused “Ah Kit” of hiding the “Ice”. Eventually, “Ah Kit” was taken by someone called “Uncle Yeung” to a bungalow in Dora Street, where he was beaten up and tortured by “Uncle Yeung” and the 3rd accused. “Ah Kit” was finally taken back to Hong Kong by “Uncle Yeung” on 6 March, the 3rd accused having left earlier on 4 March. That is the 5th count.
Although “Ah Kit” testified in court that he was taken to a flat at Sha Tau Kok and was beaten up by the 1st accused, the 3rd accused, and someone called “Ju Bei”, since the jury acquitted the 3rd accused in relation to the 6th count, and that was the only evidence against the 3rd accused re that count, so for the purpose of sentencing, I will not rely on “Ah Kit’s” evidence in this respect.
“Ah Kit” was unwilling to smuggle “Ice” to Australia again, but the 1st and the 2nd accused conspired together to send him to Australia again as a drug courier. “Ah Kit” finally told a nurse he befriended at the Nethersole Hospital of his predicament, and a report was finally made to the police, resulting in the arrest of all the accused. That is the 6th count.
Previous Convictions
The 1st accused has six previous convictions. Five of them related to employing a person not lawfully employable, and he was fined $2,500 for each offence on 19 January 1993. As for his sixth and last offence, he was convicted of trafficking in a dangerous drug, and was originally sentenced to 18 years’ imprisonment. The sentence was reduced to 16 years upon appeal.
The 2nd accused had a clear record.
The 3rd accused had one previous conviction for assisting the passage to or within Hong Kong of unauthorised entrants. He was sentenced to 3 years’ imprisonment.
Background and Mitigation
1. t Accused
The 1st accused is now aged 36, married, with two sons aged 11 and 9. He was educated up to Form 4 level, and he had worked as a kitchen worker and transportation worker before 2001. He was discharged from prison on 17 October 2009. The 1st accused’s counsel, Mr McGuinniety, rightly conceded that there is very little he could say in mitigation. He asked the court to allow some glimmer of hope to the 1st accused when passing this long sentence.
2. d Accused
The 2nd accused is aged 46, and has a clear record. He has a 17-year-old daughter from a previous marriage, and he has remarried someone from the mainland. His daughter now resides with her paternal grandparents. The 2nd accused was educated up to Form 2 level, and had worked as a waiter and in the garbage recycling and transportation business. Mr Percy, mitigating on behalf of the 2nd accused, urged me to consider that the role of the 2nd accused was not as serious as that of the 1st accused. The 2nd accused was not the mastermind, but a small potato in the syndicate, Mr Percy says. There was no evidence that the 2nd accused was involved in any of the beatings of “Ah Kit”, and the only evidence of any force was on the day of arrest, when he made “Ah Kit” go with him to his home. Mr Percy submitted that the degree of enhancement for exploiting a minor in the case of the 2nd accused should be less than that of the 1st accused.
3. d Accused
The 3rd accused is now aged 33. He is married, with two daughters, 9 and 5. He used to work as a garage mechanic and a waiter. He was a driver of a goods vehicle at the time of arrest. He was last discharged from prison on 30 March 2009. Mr Allan, in mitigation, submitted that the jury found the 3rd accused guilty of only one of the two charges he faced. The evidence showed that he came into the picture late. Mr Allan urged the court to find that there was no exploitation of a minor in the case of the 3rd accused, even though he was involved in the beating of “Ah Kit” in Australia.
Sentence
Conspiracy to traffic in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. That is pursuant to section 4 and section 39 of the Dangerous Drugs Ordinance, Cap. 134.
For the trafficking of “Ice”, the Court of Appeal has set down sentencing guidelines in the case of Ching Kwok Hung. For the trafficking of over 600 grammes of “Ice”, the starting point is from 18 years upwards, depending on the quantity and all the circumstances.
This is an appalling case. It is clear that the 1st accused was the boss or the mastermind of a drug-trafficking syndicate. He was in charge and oversaw “Ah Kit’s” acts of trafficking “Ice” into Hong Kong from Shenzhen and out of Hong Kong to Australia after “Ah Kit” agreed to act as a courier. When “Ah Kit” was reluctant to continue to act as a drug courier, the 1st accused forced “Ah Kit” to continue to work for the syndicate.
The 2nd accused, while not the mastermind, was clearly an active member of the syndicate.
As far as the 3rd accused is concerned, there was no evidence he was involved in any other conspiracy except the one he was convicted for.
As “Ah Kit” was not discovered on all those trips when he acted as a drug courier, it shows that a youngster like “Ah Kit” could escape detection easily. No doubt “Ah Kit” was enticed by the rather lucrative reward when he agreed to act as a drug courier. After all, $10,000 is a large sum for a 15-year-old boy.
This syndicate is clearly not a small one in scale. “Ah Kit’s” evidence disclosed that there were contacts in Shenzhen, Hong Kong and Australia either working for the syndicate or associated with the syndicate. As “Ah Kit” told the court, he was reprimanded by the 1st accused for bringing the whole line to a halt when he failed to bring the “Ice” to Australia on 10 December due to the burst seam of the shoe.
Apart from the quantity of “Ice” involved in this case, there are other aggravating features. There was an international element, and a minor was used to commit the offences.
In the case of the 1st accused, there are further aggravations in that he had a previous similar conviction, and he was the mastermind of the syndicate.
In the case of Abdallah, when the Court of Appeal set down sentencing guidelines to supplement those set down in Lau Tak Ming for the trafficking of heroin, the following factors were cited as examples which call for an enhancement of the appropriate starting point. The first, an international element is involved; second, the trafficker had previously been convicted of trafficking in dangerous drugs; third, the trafficker is shown to be a mastermind or senior player such as a financier in a syndicate; and fourth, the offence is shown to have engaged a young person to assist in the trafficking.
It should be noted that in relation to the last example mentioned above, section 56A(2)(d) of the Dangerous Drugs Ordinance makes specific provision for the sentencing of offenders who intentionally or unintentionally employ, hire, use, persuade, entice or coerce a minor in the commission of the offence or the avoidance of detection or apprehension of an offence. In such circumstances, the court may, if it deems fit, pass a more severe sentence on the offender than the sentence it would have passed in the absence of such information. That is according to section 56A(1)(b)(ii).
In Abdallah, the Court of Appeal set down the guidelines for trafficking large quantities of heroin, a quantity over 600 grammes without taking into account aggravating circumstances or the need for enhancement, as follows:
(1) 600 grammes to 1,200 grammes, 20 to 23 years.
(2) 1,200 grammes to 4,000 grammes, 23 to 26 years.
(3) 4,000 grammes to 15,000 grammes, 26 to 30 years; and
(4) Over 15,000 grammes is for the court’s discretion.
As far as I am aware, there is yet to be a guideline case to supplement the sentencing guidelines set down in Ching Kwok Hung for the trafficking of “Ice” over 600 grammes. I will draw an analogy with the guidelines in Abdallah and make the necessary adjustment here.
In the present case, I propose to adopt a global approach regarding sentence in the case of the 1st and the 2nd accused, taking into account all the conspiracies they were convicted of.
1st Accused
The 1st accused was found guilty of five counts of conspiracy to traffic in a dangerous drug. The total quantity of drugs involved in his case was 4,950 grammes. The quantity of “Ice” involved is substantial. Furthermore, all the aggravating factors mentioned in Abdallah were present in the 1st accused’s case. There was an international element; the 1st accused was clearly the mastermind of this syndicate; he was in control every step of the way; he used monetary reward to entice “Ah Kit” to pull “Ice” for him; he used this youngster to carry “Ice” for him to Australia after “Ah Kit” had successfully brought in “Ice” on three occasions and delivered the “Ice” to two strangers in Tsim Sha Tsui; he is not a first offender, having a similar conviction.
I am of the view that a starting point of 25 years is appropriate. That is before considering the four aggravating factors in his case. As the quantity of “Ice” is substantial, I will enhance the international element by 2 years. The fact that the 1st accused was the mastermind and had a previous similar conviction warrants an enhancement of 1 year.
In my view, the use of a 15‑year‑old to courier the “Ice” for the syndicate is very serious. A clear message must be sent out to criminals intent on exploiting youngsters to further their criminal enterprises that the court would not condone such conduct, and that a severe deterrent sentence would be imposed. Although some courts, including myself, have adopted enhancement of 50 per cent in cases where minors were exploited, in view of the substantial prison term to be served by the 1st accused, I am of the view that an enhancement of another 2 years would be appropriate.
The sentence of the 1st accused is therefore one of 30 years for all the five counts.
2nd Accused
In respect of the 2nd accused, he is not the boss or the mastermind of the syndicate, but he was actively involved in the drug‑trafficking business of the syndicate, co‑ordinating with and supervising “Ah Kit” on the instruction of the 1st accused. The total quantity of “Ice” involved in his case was 3,300 grammes.
I am of the view that the global appropriate starting point for the 2nd accused, without taking into consideration any aggravating factors, is one of 23 years. There were two aggravating factors in his case: the international element, and the exploitation of a minor. For the international element, I will also enhance the sentence by 2 years. For the exploitation of a minor, in view of the substantial term to be served by the 2nd accused, and in order to differentiate the extent of exploitation exercised by the 2nd accused when compared with that of the 1st accused, I will enhance his sentence by 1½ years.
The total sentence of the 2nd accused is therefore one of 26½ years.
3rd Accused
For the 3rd accused, he was involved in one conspiracy relating to the trafficking of 650 grammes of “Ice” to Australia.
For his part, I am of the view that a starting point of 18 years is appropriate. The aggravating factor of an international element was present in the case of the 3rd accused. In view of the fact that he was involved in 650 grammes of “Ice”, less than one kilogram, I will enhance the sentence by 1 year.
Was the evidence accepted by the jury clearly showed that the 3rd accused was exploiting a minor in the circumstances described under section 56A(2)(d)? the jury have clearly accepted the evidence of “Ah Kit” as to the role played by the 3rd accused inside the bungalow at Dora Street; otherwise, the 3rd accused would have been acquitted of the 5th charge. What happened at Dora Street included the severe beating and torturing suffered by “Ah Kit” at the hands of the 3rd accused and Yeung King-wan. Such beating and torture by themselves were carried out in Australia and did not constitute any offence in Hong Kong. By convicting the 3rd accused of the conspiracy, the jury must have been sure that the 3rd accused was a party to the conspiracy.
While it is tempting to say that the 3rd accused must have realised a minor would be used in this conspiracy to traffic “Ice” from Hong Kong to Australia, the fact remains that the 3rd accused did not come into the picture until almost two months after “Ah Kit” had brought the “Ice” into Australia.
The beating was done for the main purpose of getting “Ah Kit” to return the lost “Ice”, which included not only the “Ice” “Ah Kit” had brought along, but also the “Ice” “Ah Kit” obtained from the middle-aged man, Au Yeung Hin‑cheong, at the Four Seasons Hotel.
I must bear in mind that the jury acquitted the 3rd accused of the 6th count, meaning that the jury rejected the evidence of “Ah Kit” that the 3rd accused persuaded or coerced him to traffic in the dangerous drug in relation to the 6th count. The evidence accepted by the jury, in my view, is open to the inference that the 3rd accused was a party to the conspiracy, with full knowledge that a minor would be used. The evidence is also open to the inference that the 3rd accused conspired with the 1st accused and/or some other persons to traffic “Ice” into Australia as particularised in the 5th count without knowing that the actual courier was to be a minor, so that the 3rd accused only knew of the participation of a minor after he had become a co‑conspirator and after “Ah Kit” had smuggled the “Ice” into Australia.
Appalling as it is what the 3rd accused had done to “Ah Kit” in Australia, for the purpose of sentence I would not enhance his sentence for the reason of any exploitation of a minor.
The sentence of the 3rd accused is therefore one of 19 years.
I do not see any reason to reduce the sentence in the case of each of the accused, so this is the actual sentence passed:
1st Accused
For the 2nd, 3rd, 4th, 5th and 6th counts, the 1st accused is sentenced to 30 years’ imprisonment for each count, all sentences to run concurrently, making a total of 30 years.
2nd Accused
For the 3rd, 4th, 5th and 6th counts, the 2nd accused is sentenced to 26½ years’ imprisonment for each count, all sentences to run concurrently, making a total of 26½ years.
3rd Accused
For the 5th count, the 3rd accused is sentenced to 19 years of imprisonment.