HKSAR v. LIM AH HENG AND ANOTHER

HCCC 223/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 223 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The two defendants, Lim Ah-heng, D1, and Yap Wen-chin, D2, were jointly charged with one count of trafficking in a dangerous drug, the 1st count, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of the 1st count were that both defendants on 17 October 2014, at the Hong Kong International Airport, unlawfully trafficked in a dangerous drug, namely 996.6 grammes of a crystalline solid containing 952.8 grammes methamphetamine hydrochloride.

As an alternative charge to the 1st count, D1 was charged alone with the unlawful trafficking of 598 grammes of a crystalline solid containing 571 grammes of methamphetamine hydrochloride, that is the 2nd count, while D2 was charged alone with the unlawful trafficking of 398.6 grammes of a crystalline solid containing 381.8 grammes of methamphetamine hydrochloride, that is the 3rd count.

They both pleaded not guilty to the 1st count and pleaded guilty to the alternative count they each faced alone. Their pleas were accepted by the prosecution. I convicted the 1st defendant of the 2nd count and the D2 of the 3rd count after they both admitted the summary of facts.

Summary of Facts

On 17 October 2014, a team of Customs officers were performing patrol and observation duty in plainclothes at the departure level of Hong Kong International Airport. D1, who was about to board a flight bound for Kuala Lumpur at gate 26, was intercepted by a Customs officer and he was taken to a nearby room for a search. Suspected dangerous drugs were found concealed inside D1’s underpants.

D1 was arrested and under caution D1 admitted that the packets concealed inside his underpants were approximately 600 grammes of ‘Ice’. He had been instructed to bring the drug to Malaysia for a reward of 5,000 Malaysian Ringgit. He had received 2,500 Ringgit with the balance to be paid upon delivery. Another male, Ah On, accompanied him on the same flight.

Shortly afterwards, D2 was intercepted by another Customs officer at the departure gate 26. He was also taken to a room for a search. Suspected packets of dangerous drugs were found concealed in his underpants.

D2 was arrested and under caution D2 said he knew nothing and had nothing to say.

In a video-recorded interview conducted with D1, D1 gave details of how he came to be involved in drug trafficking. He said he worked as an electrical worker in Kuala Lumpur and was sent by his boss to visit Phnom Penh to observe and study electrical works there. He travelled to Taipei for leisure. He then travelled to Hong Kong and then went into mainland China.

Ah On, that is D2, who he had known for about half a year, travelled together with him. A Malaysian called Ah Tung had recruited him to bring drugs back to Kuala Lumpur and this Ah Tung arranged for their accommodation in Shenzhen and the air ticket from Hong Kong to Kuala Lumpur. Ah Tung asked him to recruit another person to accompany him on the trip. D1 then asked Ah On to do so. Ah On agreed to carry drugs to Kuala Lumpur to earn money.

D1 then described how packets of dangerous drugs were delivered to him at a hotel and how both he and Ah On were given underpants with the dangerous drugs concealed inside to wear. He knew the stuff concealed in the underpants was dangerous drug and he was promised a reward of 5,000 Malaysian Ringgit for the delivery.

D2 also took part in a video-recorded interview. He admitted knowing “Fat Hing” and had travelled with him to Phnom Penh, Taipei, Hong Kong and the mainland. He received instructions from his company that he should bring the underpants with the stuff back to Kuala Lumpur and he trusted his company. He did not share a room with Fat Hing, but both of them went to a toilet of a hotel after Fat Hing spoke to someone on the telephone.

When D2 entered the toilet cubicle, he took out the underpants with the dangerous drug from a water tank and put them on. He suspected the stuff inside the underpants was illegal but he had no choice but to follow the instructions of his company. He denied knowledge of the dangerous drug inside the pants. He knew he would get a few thousand Malaysian Ringgit as a reward.

After analysis, the stuff found on D1 was 598 grammes of a crystalline solid containing 571 grammes of methamphetamine hydrochloride, while the stuff found on D2 was 398.6 grammes of a crystalline solid containing 381.8 grammes of methamphetamine hydrochloride.

The street value of the dangerous drug recovered from D1 was estimated at $278,070, and from D2, $185,349.

D1 admitted that he trafficked in the dangerous drug particularised in the 2nd count and D2 admitted he trafficked in the dangerous drug particularised in the 3rd count.

Background and mitigation

D1 is a 35-year-old single Malaysian male with no criminal record in Hong Kong. He used to work as an electric technician earning between 2,000 to 3,000 Malaysian Ringgit per month. He received education up to junior level, and he owed gambling debts in the sum of about 30,000 Malaysian Ringgit.

Mr John Hemmings, counsel for 1st defendant, submitted that D1’s plea is really the only mitigating factor in this case. On a mathematical calculation, the amount of ‘Ice’ trafficked by D1 would warrant a starting point 19½ years, he submitted. Accepting that an international element is involved, Mr Hemmings suggested an enhancement of 6 months, making a total starting point of 20 years.

Mr Hemmings also submitted that D1, apart from pleading guilty, had also rendered assistance to the authorities. This was later confirmed upon inquiries made.

D1 had written to me describing how he got himself deep in trouble as a result of gambling. He expressed his remorse and asked for a lighter sentence.

D2 is a 30-year-old Malaysian male, also with no criminal record in Hong Kong. D2 was divorced and he has a 10‑year‑old son. He studied up to junior secondary level and had worked as an audio technician earning about 3,800 Malaysian Ringgit per month. He had been unemployed since August 2013 and owed debt in the amount of around 30,000 Malaysian Ringgit.

Mr Kevin Chan, counsel for D2 also submitted that D2’s plea was really the only mitigating factor in this case. The quantity involved was 381.8 grammes, within the band of 15 to 20 years. As to the international element, Mr Chan referred this court to the case of HKSAR v Chung Ping Kun CACC 85/2014. D2 trafficked in amounts between 250 to 500 grammes, the appropriate enhancement is between 6 months and 1 year, Mr Chan submitted.

D2 had written a letter to me detailing his background of how he came to commit the crime and asked for a lighter sentence. He stressed on the hardship he faced back home. His father died when he was 9. He had to stop schooling early to help his mother to support the family.

Though he was able to work, got married and has a son, he lost his job in 2013 and had to borrow money from loan sharks to make ends meet. He resorted to earn quick money so he committed the present offence. He also asked this court to take into account his having cooperated with the police in supplying information.

Mr Chan, upon clarification by this court, confirmed that he had already explained to D2 that D2’s personal circumstances did not amount to mitigating factors in this case. Mr Chan also confirmed that nothing turns on D2’s alleged cooperation with the police.

The sentence

Trafficking 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.

As the offence took place after June 2014, the guideline set down by the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 is applicable. For the trafficking of 300 to 600 grammes of ‘Ice’, the starting point is one of 15 to 20 years.

D1 was caught trafficking 571 grammes of ‘Ice’. He clearly acted as a courier for others. Taking into account all the circumstances of this case, a proper starting point is one of 19½ years. There was also an international element involved here which warrants an enhancement of the starting point.

As properly submitted by Mr Kevin Chan for the 2nd defendant, in the case of Chung Ping Kun, the Court of Appeal has set down guidelines for the extent of enhancement. For the trafficking of 500 to 1,000 grammes, the enhancement is between 1 to 2 years. I am of the view that the proper enhancement here is 1 year for D1.

I now have to decide how much discount should be given to D1 from this pre-deduction sentence of 20½ years. The defendant is entitled to the full one-third discount for his plea. I bear in mind that D1 not only cooperated with the Customs officers upon his arrest as particularised in the summary of facts, he had also given valuable assistance to the authorities.

I am satisfied that in all the circumstances it is proper for me to give the 1st defendant a 50 per cent discount. The resultant sentence is therefore one of 10 years and 3 months’ imprisonment.

In respect of D2, bearing in mind the quantity of ‘Ice’ involved, that is 381.8 grammes, and that he also acted as a courier, in all the circumstances of this case I am of the view that the appropriate starting point for him is one of 16 years and 3 months. On the authority of Chung Ping Kun, the appropriate enhancement for the international element in relation of D2 is one of 9 months. The pre‑deduction sentence is therefore one of 17 years.

Although D2 did not admit to the trafficking of dangerous drugs upon arrest or during the investigation by the Customs officers, he has offered a timely plea and I will give him the full one-third discount. There are no other grounds to further reduce the sentence. The resultant sentence is 11 years and 4 months’ imprisonment.

The actual sentence for the 2nd count, 1st defendant sentenced to 10 years and 3 months’ imprisonment. The 3rd count, 2nd defendant, 11 years and 4 months’ imprisonment.