HKSAR v. WONG CHUN KIT

HCCC 501/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 501 OF 2013

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REASONS FOR SENTENCE

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1. The defendant has pleaded guilty to trafficking in dangerous drugs.

2. The factual circumstances of the offence were that in the early afternoon on 27 May 2013 the defendant entered Hong Kong from Mainland China.  He was stopped by customs officers who searched his bag and found a solid of 993.85 grammes consisting of 963.81 grammes of ICE.  At the time the drugs had a retail street value in Hong Kong of about $750,000.

3. The defendant was arrested and cautioned and when asked what was the substance he was carrying he said he thought it was cannabis.  He explained that he was to deliver the drugs to a man at Sheung Shui Station who would give him $4,500 as a reward.  He also explained that he had no means by which to contact this other man.  The defendant also had in his possession $7,000 cash and three mobile phones.

4. Later the defendant was asked if he was willing to participate in a controlled delivery operation.  He said he was willing to do so, and it was then that he explained that the drugs were to be delivered at Fanling to a man who had been previously introduced to him by the boss.  A party of customs officers then accompanied the defendant to a Kentucky Fried Chicken (KFC) restaurant in a shopping area above Fanling Station.  It was arranged that the defendant would signal to the customs officers by way of a nod when the man approached him.  At the KFC restaurant the defendant received a call on his mobile phone from the man who was to collect the drugs.  There was a second call from the man and arrangements were made for him to come and meet the defendant inside the KFC restaurant.  There was another call from the man asking the defendant exactly where he was sitting and soon after the man came in and sat next to the defendant.  The defendant nodded to alert the customs officers that this was the man.  The customs officers immediately stopped and arrested the other man but before the defendant had handed over the drugs to him.  It appears that as a consequence a prosecution has not been proceeded with against the other man.

5. In interviews with customs officers, the defendant gave a frank account of his background and the circumstances that led him into committing this crime.  He explained that his standard of education was only to Form 3 level and that at the time of the offence, he was unemployed and receiving social welfare assistance which he had been receiving since 2003 because of a physical disability.  He further explained that as a result of a traffic accident, he has had a history of problems with his limbs for which he has received surgical treatment over the years.  He has also developed because of his infliction a serious mental illness for which he needs to take medication.

6. The defendant explained that he carried goods for other people as he was without working skills and on this occasion he thought he was carrying cannabis and had no idea that it was something more serious.  He recounted that on the day in question his boss, who he also referred to as “Ah Nai”, gave him a packet which he put in his bag.  He told him to take it to Hong Kong and to give it to someone at a station.  He said that he had known the boss for 4 to 6 years and that originally he would carry milk powder for him.  He had two telephone numbers for the boss – a Mainland China number and a Hong Kong number.  The boss telephoned the defendant on the evening of 26 May 2013 and asked him to come and collect something for delivery.  He met the boss who had also organised other couriers to deliver goods to Hong Kong. He told him he was carrying several ounces of cannabis buds.  It was at the border control point that he felt the package and realised it was hard.  He contacted the boss to ask him what it was and he informed him that he would be paid an additional $2,000 on top of the $2,000 he had been originally promised.  He confirmed that he had met the man to whom he was to deliver the goods in the presence of the boss on two or three prior occasions.

7. The defendant is 49 years old.  He has prior convictions for minor offences for which he received a fine or probation.  At the time of the offence, the defendant was living with his second wife, or cohabitee, and two daughters, the youngest of whom is 12 years old and still at school.  He also has a son who is in his mid twenties and lives away from home.  The defendant was involved in a traffic accident in 2003 and sustained a serious cervical injury which required surgery.  He received long‑term outpatient care as a result of the physical and psychological impairment he suffered; in particular he has been receiving treatment for his mental health problems because of persistent depressed mood, insomnia and post‑traumatic stress symptoms.  His disability has limited his work capacity and he has not been able to maintain gainful employment.  He has been diagnosed to be suffering from Dysthimia with espisodic decompensation into Major Depressive Episode.  He requires long‑term outpatient psychiatric care and psychotropic medication.

8. The defendant blames his current circumstances to his inability to secure employment because of his ill‑health as a result of the traffic accident in 2003.  It has been urged upon me that the defendant took up delivery work, transporting goods between Mainland China and Hong Kong, because nothing else was available, and that he was taken advantage of because of his circumstances, and that is the reason why on occasion he would deliver illicit goods for his boss.  The answer to his circumstances was simply to have said no when asked to do something illegal.  I do accept that he was experiencing hardship and therefore in a vulnerable position, but it would appear that he participated in this crime with his eyes wide open knowing that he was transporting illicit drugs. 

9. Sentencing is not a ritualistic prescription of sentencing principles and guidelines by simply applying a mathematical formula to calculate the punishment.  If it was, there would be no need for judges or magistrates in the sentencing process.  It is said that draconian measures are required to counter the threat posed by drug traffickers and those they employ: HKSAR v Leung Ka‑yin [2005] HKCU 1198 (CACC 145/2005, 1 September 2005, unreported).  It is also said that in serious crimes like drug trafficking, the personal circumstances of the offender, normally have little if any bearing on the sentence to be imposed.  These are important general principles the court must always bear in mind but it does not mean that the personal circumstances of the offender should never be taken into consideration.  There may be exceptional cases where it can, and should be taken into account.  It is easy to sound in rhetoric that a person no matter their circumstances should not commit crime but in reality there are tragic figures who come before the courts having committed a crime because of their circumstances.  As bad as some crimes may be, the courts are to dispense justice and that involves imposing a just and appropriate punishment for the crime committed by taking everything into account and anything short of that would in itself be an injustice. 

10. I have carefully considered the defendant’s circumstances and whilst he was experiencing difficulties securing employment and trauma with his personal problems, this has to be weighed against the seriousness of the crime that he has committed.  In my view, the defendant’s personal circumstances made him an easy target for others to take advantage of but that diminishes correspondingly with the seriousness of the crime that he has got involved in.  I will bear it in mind by treating him as leniently as I can within the relevant sentencing tariffs and principles.

11. According to the sentencing tariff laid down in A G v Ching Kwong Hung [1991] 2 HKLR 125 and HKSAR v Capitania [2004] HKCU 926 for a quantity of ICE of over 600 grammes a sentence should range from 18 years upwards.  The question of an appropriate sentence for very large quantities of ICE was recently addressed by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, where the Abdallah guidelines were applied to very large quantities of ICE.  The tariff now fixed for a quantity of ICE of 600 to 1,200 grammes is 20 to 23 years’ imprisonment.  This case was handed down on 9 June 2014 and the tariffs set out apply to all those persons who commit the offence of trafficking in ICE from that date.  I note that the defendant committed this offence on 27 May 2013 and therefore the old tariffs apply although there is not much difference between them and the new tariffs which seek to provide consistency in sentencing for very large quantities of ICE. 

12. It was urged upon me on the defendant’s behalf that he believed the drugs to be of a less potent type than in fact they were. As to whether this was the case, I have to be satisfied on a balance of probabilities that it was on evidence presented to me.  The availability of this factor in the sentencing process is strictly applied and requires looking at all the circumstances in order to be satisfied that is truly the case.  It will necessarily require supporting evidence as it would be rarely established by a bare assertion from the defendant.  As a result, the sentence according to the sentencing tariff of the actual drug involved will be discounted on account of the defendant’s mistaken and genuine belief that the drugs were a less potent type than in fact they were.  In the present circumstances, the defendant originally believed he was carrying cannabis buds.  It seems that he was put on notice that it was carrying something other than cannabis buds because he felt that the package was hard.  This caused him to contact the boss about what he was carrying and he was offered an additional $2,000 to deliver the goods.  It seems clear to me that he was aware that he was delivering drugs that were more potent than cannabis buds, namely hard drugs. 

13. The defendant cooperated with the authorities by participating in a controlled delivery which he saw out to the end and for this he should receive a reduction to his sentence even though the controlled delivery was unsuccessful.  See HKSAR v Gopal Muthusamy, CACC 238/2010, 13 July 2011, unreported.  There are also special circumstances on the papers that justify a lenient view to be taken on the facts.  When fixing the starting point, it would be necessary to take into account the international element involved by the transportation of the drugs from Mainland China to Hong Kong, which I will do by an addition of 6 months’ imprisonment.

14. Given the foregoing factors together with the nature and quantity of drugs involved, I will impose a starting point of 21 years’ imprisonment (including the 6 months’ imprisonment for the international element) and taking into account his plea of guilty, which is deserving of a one third discount, and his genuine cooperation and assistance to the authorities, I will therefore reduce his sentence by 45 percent.  Accordingly, the defendant is sentenced to 11 years and 6 months’ imprisonment.