HKSAR v. WAN CHEUNG HOI

HCCC 91/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of the following charges: Charge 1, trafficking in a dangerous drug, namely 1,994 grammes of a crystalline solid containing 1,955 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug; and Charge 2, possession of a dangerous drug, namely 2.63 grammes of a solid containing 2.59 grammes of methamphetamine hydrochloride.

The Summary of Facts admitted by the defendant provides, inter alia, that at about 0559 hours on 12 August 2015, the defendant was intercepted at the Customs Arrival Hall at the green channel of Lok Ma Chau Terminal upon arrival from the Mainland for Customs clearance. The defendant was body searched. Found wrapped around his waist was a corset-belt holding two transparent plastic bags containing 1,994 grammes of a crystalline solid containing 1,955 grammes of methamphetamine hydrochloride, and one tissue paper containing one plastic bag containing 2.63 grammes of a solid containing 2.59 grammes of methamphetamine hydrochloride.

Arrested and cautioned, the defendant admitted the substances were dangerous drug ‘Ice’.

At a subsequent video-recorded interview at the police station, under caution the defendant said, inter alia:

(1) In July 2015, the defendant came to know a person called “Ah Chuen” at a karaoke. Ah Chuen asked the defendant whether he wanted to make money and, if so, to leave him his phone number. The defendant agreed and left his phone number to Ah Chuen.

(2) On 11 August 2015, the defendant received a phone call from Ah Chuen who asked him to meet up at the Lo Wu Station on the Mainland side between 9 pm to 10 pm on 11 August 2015. The defendant did as instructed and went by taxi to Huanggang. On meeting up, Ah Chuen asked the defendant to help him bring dangerous drug ‘Ice’ to Hong Kong for a reward of $10,000. The defendant agreed.

(3) At about 5 am on 12 August 2015, Ah Chuen took the defendant to a building where he gave the defendant two plastic bags of ‘Ice’ to deliver, and one small packet was given to him as a treat. Ah Chuen also gave the defendant a corset-belt to fasten the drugs onto his body. The defendant then attempted to cross the border but was arrested by the police.

(4) The defendant did it as he needed money for spending.

(5) After the defendant had delivered the drugs, he would go back to the Mainland and Ah Chuen would call him to give him his reward.

(6) Cash of HK$9,200 and RMB600 found on the defendant was his earnings from parallel trading.

The travel movement record of the defendant showed that the defendant left Hong Kong for the Mainland via Lok Ma Chau Terminal on 11 August 2015 at 2114 hours and returned to Hong Kong from the Mainland via Lok Ma Chau Terminal on 12 August 2015 at 0558 hours.

The estimated market retail value of the drug seized was HK$656,891.

By way of personal background, the defendant is 55 years of age. He was born in Hong Kong in December 1960. He has received education up to Form three secondary level. After quitting school, the defendant had worked as a garage worker, truck driver and a factory worker. I am told that the defendant was addicted to heroin at the time of his arrest. The defendant has been separated from his wife for over 10 years.

The defendant has 42 previous convictions, 8 of which are for possession of dangerous drug and 2 for trafficking in dangerous drug. The last trafficking conviction was recorded in November 2012, for which the defendant was sentenced to 16 months’ imprisonment.

In mitigation, Mr Cheung Yiu-leung on behalf of the defendant submitted that the defendant has been cooperative with the police since his arrest. He further urged upon me to take into account his guilty pleas, which were entered at the first opportunity at the Magistrates’ Court.

I deal first with the proper starting point for sentence on Charge 1.

The dangerous drug involved in Charge 1 is 1,994 grammes of a crystalline solid containing 1,955 grammes of methamphetamine hydrochloride.

The offence was committed on 12 August 2015, ie, after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014 which sets out revised tariffs for trafficking in the ‘Ice’ drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the ‘Ice’ drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 1,200 to 4,000 grammes of heroin, the guideline starting point after trial should be 23 to 26 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (1,955 grammes of methamphetamine hydrochloride), the proper initial starting point for sentence on Charge 1 should be 23 years and 9 months’ imprisonment.

The defendant was caught trying to bring the drug in question from mainland China into Hong Kong. The initial starting point of 23 years and 9 months’ imprisonment should be enhanced by two years for the international element in the present case [see: HKSAR v Abdallah (supra) at paragraphs 42 and 43].

This would take the starting point up to 25 years and 9 months’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea, which was entered at the first opportunity at the Magistrates’ Court.

This results in a sentence of 17 years and 2 months’ imprisonment on Charge 1.

Regarding Charge 2, the defendant has been convicted on his own plea of possessing 2.63 grammes of a solid containing 2.59 grammes of methamphetamine hydrochloride.

For this offence, I would adopt a starting point of 12 months’ imprisonment. This should be reduced by one-third to reflect the defendant’s guilty plea. This results in a sentence of 8 months’ imprisonment on Charge 2.

I then have to give consideration to the totality principle in order to arrive at a correct overall sentence. This is particularly so in the present case: for even if the defendant had been convicted of the more serious offence of trafficking on Charge 2, the quantity of narcotics in the two charges would be combined to achieve a just overall sentence.

HKSAR v Or Wai Tong, CACC 250/2009 (Judgment dated 3 December 2009) is Court of Appeal authority that, in the circumstances, the sentence on Charge 2 should be ordered to be served wholly concurrently with the sentence on Charge 1, and I will so order.

On Charge 1 of trafficking in a dangerous drug, you are sentenced to 17 years and 2 months’ imprisonment. On Charge 2 of possession of a dangerous drug, you are sentenced to 8 months’ imprisonment. The sentence on Charge 2 is to run concurrently with the sentence on Charge 1. This results in a total sentence of 17 years and 2 months’ imprisonment.