HKSAR v. HUI WAI KIT

HCCC 252/2019

[2020] HKCFI 2354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

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

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COURT: Hui Wai-kit was the 2nd accused on an indictment in which he faced two counts. The 1st count alleged the offence of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. It alleges that he together with another person trafficked in dangerous drugs at the residence of that other person in Tsing Yi in the New Territories. That count alleged that on 7 August 2018, he unlawfully trafficked in 796.2 grammes of a crystalline solid containing 776.3 grammes of methamphetamine hydrochloride. To this count he pleaded not guilty and was convicted after trial following a verdict of guilty by a jury. The other person, who was the 1st accused on the indictment, also went to trial and the jury returned a not-guilty verdict. She was acquitted and discharged following that verdict in relation to her.

The 2nd count on the indictment faced by Hui Wai-kit was a charge of possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance. He pleaded not guilty to this count on arraignment. The particulars of this charge alleged that on 8 August 2018 at the offices of the Customs and Excise Service at the international airport he had in his possession a dangerous drug, namely 1.18 grammes of a crystalline solid containing 1.15 grammes of methamphetamine hydrochloride. Arraignment took place on the same date in respect to both charges.

Following the arraignment, an application was made by Mr Hui to sever the possession of dangerous drugs count from the trafficking count. I refused that application and following that, Mr Hui asked for this count to be put to him again and on re-arraignment, he pleaded guilty to the charge and it was adjourned to abide the outcome of the trial on the trafficking charge.

Mr Hui now falls to be sentenced in relation to both counts.

Factual Basis for Sentence

Principles

The factual basis for sentence in relation to the 1st count is the facts that I am sure were proved against Mr Hui in the trial. The law requires the facts upon which I sentence Mr Hui in that respect must reflect and honour the verdict of the jury, and I cite R v Kwok Yau Shing [1967] HKLR 664 and R v Chan Kai Lun [1971] HKLR 45 for that proposition.

Relevant Facts

Trafficking in ‘Ice’

The facts relevant to sentence in relation to Count 1 are on 25 July 2018, at 3.37 am at the DHL Central Asia Hub at the international airport, an operations agent of DHL handed over a parcel to customs officers for examination. According to the shipping documents attached to the package, it appears to have been sent from Malaysia. The parcel had an airway bill 539-04874262. The package was declared to be a “Gloria Baby Chair”. The consignee of the package was not Mr Hui and he did not come into the picture until some time later.

On examination, officers of the Customs and Excise Service became suspicious of the contents of the package and suspected that it contained, concealed in the metal frame of the baby chair inside the package, an amount of methamphetamine hydrochloride. In due course, that suspicion was confirmed and we see this in the government chemist certificate which confirmed the weight of methamphetamine hydrochloride found inside the metal frames of the baby chair. While on that topic of the government chemist certificate, there is also a certificate in respect of the weight of the mixture and methamphetamine hydrochloride which establishes Count 2.

Officers of the Customs and Excise Service undertook a series of what I have termed controlled deliveries. The first of these was unsuccessful and it is a reasonable conclusion that perhaps the original intended recipients were not completely confident that they were receiving a genuine DHL delivery. Whether the recipients were, as I suspect, somewhat skittish or whether it was just plain bad luck does not greatly matter. The first three controlled deliveries were attempted between 25 and 26 July 2018 and they were unsuccessful. Following that, a person purporting to be the sender of the parcel instructed DHL to send it to a different name with a different address and a different contact number.

On 30 July 2018, a third attempt was made to deliver this parcel. That occurred at about 11 am. The attempt was at the address that the Customs and Excise officers had attempted in relation to the first two unsuccessful deliveries, and they were met with a response of a male occupant of the premises that he was not the person named in the shipping document as the recipient of the parcel and he would not receive the parcel later that day. As I have already indicated, DHL received a call purporting to be from the sender issuing instructions which were to change the name, address and contact number of the intended recipient. The officers went to the new address and were met with a female who answered the door and said that the newly-named recipient did not live at that address.

On 3 August 2018, DHL received a further call from a person who claimed to be the sender of the package and requested that there be a change of consignee to the name of the 1st accused on the indictment and to the address of the 1st accused. The contact number given was not that of the 1st accused. The officers attended at that address on 6 August 2018. Nobody answered the door and there were various conversations with a male claiming to be Ko Wai-kit (the 1st accused is a female) and that was about the delivery of the package. In the result, this attempted delivery was unsuccessful.

Also, on 6 August 2018, a male called the DHL service hotline claiming to be the sender of the parcel and asked for delivery at the new address (that is, the address of the 1st accused) between 11 am and 1 pm on 7 August 2018.

As it happened, the officers dealing with the controlled deliveries simply could not execute the delivery during that time. In any event, a Cantonese-speaking female who said that she was the intended recipient of the parcel contacted the DHL hotline at about noon on 7 August and requested the parcel be delivered to that address that night. The phone number of the caller noted by DHL was the phone number of the 1st accused.

At about this time, the evidence revealed the first physical sight of Mr Hui as he was seen riding in the elevator from the ground floor up to the 11th floor where the 1st accused had her residence. The entry occurred at about 10 am and he is seen leaving the building at about 1 pm.

Mr Wong told me that he accepted that the accused probably became involved around late July. The nature of the involvement I will come back to in a moment. However, from the mobile phone of the 1st accused and the two mobile phones which the jury must have found were owned and operated by Mr Hui, there was abundant evidence of telephonic communication. The 1st accused sent her address and what appears to be an image of her identity card, and that material is seen on one of the two mobile phones of Mr Hui. We also see the communication between Mr Hui to the 1st accused providing her with the DHL airway bill number. There are multiple other communications between the two of them.

The jury must have found from an examination of the mobile phone communications that Mr Hui took a detailed interest in arrangements for the delivery of the package to the residence of the 1st accused. I am sure they are right. I am sure that the proper view of the facts is that Mr Hui was instrumental in the selection of the 1st accused as the recipient. The uncontroverted evidence is that he turned up at her premises shortly after the delivery and was then arrested. His arrival after the package was delivered was his second attendance at her residence on 7 August 2018. I am sure that the jury was entirely right to conclude that he must have known that the parcel contained dangerous drugs and, whether or not he was a party to any aspect of the attempted delivery of the parcel on earlier occasions, he was plainly the prime mover of the delivery which brought about the arrest of himself and the 1st accused.

Pausing there, I am sure that the jury took the view that they could not be satisfied beyond reasonable doubt that the 1st accused knew what the contents of the parcel was.

The case against Mr Hui was a circumstantial one, but when all of the facts and circumstances were carefully analysed, it presents a clear case that at least so far as the delivery on 7 August is concerned, Mr Hui was instrumental in organizing this and knew what was in the package, intending to traffick in it. Let me be clear. There is no basis to conclude that he was involved in the scheme to import the drugs even though I have no doubt that not only a Malaysian end but a Hong Kong end existed as well. It is not appropriate to conclude that he was the sole arranger nor is it proper to conclude that he was necessarily a major player in the delivery within Hong Kong. I am sure, as I firmly believe the jury was sure, that he was at the residence of the 1st accused to take the parcel from her and convey it to its ultimate destination, knowing that it contained drugs and intending to traffic in it. It follows from this that I am firmly of the view that the proper view of the role of Mr Hui is not, on any account, to regard him as a major player and he should be sentenced accordingly. I proceed upon the basis he was a small-time player in the delivery process. In my judgment, the only aggravating feature is that he fairly shamelessly exploited the 1st accused. This is consistent with the acquittal of the 1st accused because the only rational basis for the acquittal was that the jury must have had, at bare minimum, a reasonable doubt about her knowledge. I think it is highly likely that she was perhaps naïve but she was ignorant of the true nature of the contents of the parcel she received after she lent her name, address, and ultimately, contact number to Mr Hui.

It follows from that that I do not propose to sentence on the basis that so far as Mr Hui is concerned that there is an international element for him even though I think it is likely that he knew that the parcel had come from overseas.

I have seen his previous criminal history and I will refer to that in a small amount of detail later in these reasons, but the nature of the convictions which are a prominent feature of that record support the suggestion that Mr Hui was nothing but a bit player.

Mr Wong suggests that his conduct at the trial saved public time and public money. Summary of Facts, which was comprehensive to say. The least, was agreed and the limited number of witnesses was examined on a fairly limited basis. That is as may be. For my part, I do not think that that takes the argument terribly far in relation to sentence.

Possession of ‘Ice’

The facts in relation to this offence arise from the fact that following the arrest of Mr Hui for the trafficking offence, he was, in due course, taken to the offices of the Customs and Excise Service at the airport for further investigation and for a thorough search. That thorough search revealed the packaging containing the dangerous drug, the subject of the possession charge, actually attached to the scrotum of Mr Hui. He was arrested for the possession of the drug and remained silent. The drug, so far as the possession count is concerned, was analysed as I have described earlier.

Background of Mr Hui Wai-kit

Antecedents

He is a 49-year-old man, he is married and immediately prior to the events leading to his arrest, he was of no fixed abode.

Criminal Record

He has a long criminal record and between 1988 and 2017 he has a substantial number of convictions for possession of dangerous drugs. There is only one charge and that is a long time ago for possession for the purpose of unlawful trafficking. All of the other offences which appear in his record appear to me to be of a comparatively minor nature.

In mitigation, Mr Wong argues that the trial was conducted in a way which was not a waste of time and that the accused did not testify. He also argues that the accused was a comparatively minor player in the scheme viewed as a whole.

Sentencing Principles: Starting Point, Trafficking in ‘Ice’

The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. The trafficking and possession of ‘Ice’ can have serious consequences for the family members close to the accused.

However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private and more pertinently in public can be quite dangerous. The combination of the ingestion of ‘Ice’ and driving a motor vehicle or a truck has a history heavily punctuated with tragedy. Of all of the drugs commonly seen in Hong Kong, ‘Ice’ is perhaps the worst by reference to its impact on the user, and perhaps more tragically, its impact on the community. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.

To reflect the serious view that the courts and the community take in relation to trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including ‘Ice’, which is of course the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested for quantities involved in the present case falls at over 600 grammes and the starting point for 600 grammes starts at 20 years. The range in question is upon the basis of a conviction after trial. Plainly, that is the basis upon which the starting point is, today, to be calculated. 776 grammes of ‘Ice’ requires a sentence clearly in excess of 20 years. Naturally, the relationship between the weight and the appropriate number of years within the guidelines had an approximate mathematical progression and that progression would be more appropriate for sentences for quantities under 600 grammes. For quantities over 600 grammes, a far less mathematical approach is called for. Doing the best I can, I think a starting point of 21 years and 6 months is appropriate.

As to the possession of ‘Ice’, this is an offence and the quantity is not insubstantial. The starting point of 18 months’ imprisonment is appropriate.

Discount for Plea

Obviously, no discount is appropriate for the sentence in relation to the trafficking count. Some discount remains appropriate for the possession count and the very best I consider appropriate for this offence would be a discount of 20 per cent. The plea was very late. However, as will shortly appear, when looking at the totality of the appropriate sentence given the seriousness of the sentence which must be imposed for the trafficking count, the sentence for possession pales into insignificance.

As I have already said, I am sure that viewed by reference to the whole of the enterprise, Mr Hui was a minor player to smuggle into Hong Kong a very large amount of methamphetamine hydrochloride. However, our drug laws and the sentencing policy which underlies them accord little mercy to even minor players. In my judgment, given the substantial sentence which Mr Hui faces in relation to trafficking in Count 1, I impose a sentence of 21 years and 6 months on that count and a sentence of 14 months on the possession count that is Count 2. I order that all of the sentence in Count 2 be served concurrently in relation to Count 1. That is the order I impose on the 2nd Accused.