HKSAR v. LIN CHI MAN

[English Translation – 英譯本]

HCCC 337/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 337 OF 2015

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

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

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

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

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

COURT: The defendant Lin Chi-man was indicted of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong. Upon his own plea of guilty and admission to the facts of the case, he was convicted of the offence of trafficking in a dangerous drug.

Facts

The facts disclose that a parcel was consigned to DHL, a courier company, in the Republic of Trinidad and Tobago on 8 December 2014 for delivery to Hong Kong via the United States of America. On 10 December, when the parcel reached the US state of Kentucky, it was intercepted by a law enforcement officer for examination whereby a metal cylinder containing white powder was found inside the parcel contrary to the manifest description of vehicle parts being contained in the parcel. Therefore, the US law enforcement officer re-packed the parcel and informed the Customs and Excise Department of Hong Kong by email to place the parcel under surveillance.

On 16 December 2014, Customs Officers were deployed to conduct surveillance on the delivery. At that time, acting as a DHL employee decoy, a Customs Officer contacted the defendant according to the phone number provided in the air waybill. At that time, the defendant told the decoy that he was the recipient and his name was Lin Chi-man （練志文）. The name Lin Lin-man（練練文）written in the air waybill was wrong. The two parties thereupon made arrangements for the parcel to be delivered to an address on Waterloo Road the next day. Upon seeing the decoy outside a building on Waterloo Road, the defendant told the decoy that he was the recipient of the parcel. After the defendant had taken delivery of the parcel, he was arrested for the offence of trafficking in a dangerous drug.

The defendant said under caution that he took delivery of the parcel for a person called Ah Ho（阿豪）and was promised a reward of $5,000.

Eventually, the substance contained in the parcel was submitted for analysis and was found to be 1.96 grams (sic) of a mixture containing 1.1 kilogramsof cocaine with a market value of over one million, $1,875,720 dollars. The defendant admitted that he knew that the parcel contained dangerous drug when he took delivery of it.

As far as the defendant’s background is concerned, the defendant is 32 years of age. He has five previous convictions including unlawful assembly, theft and offences related to vice establishments and infringement of copyrights. But the defendant has no previous history of narcotic offences.

In the last hearing, I was informed by Mr Ho, counsel for the defendant, that the defendant has a very serious problem with his pancreas and requires 4 injections of insulin a day. Having been told of this information by Mr Ho, the court hence adjourned the case in the last hearing and called for a medical report in respect of the defendant so as to find out his condition. I have now obtained the report prepared by a Senior Medical Officer of Lai Chi Kok Reception Centre. According to the report, the defendant has diabetes. Because of his diabetic conditions, he was regularly examined during his detention. He had also attended follow-up appointments and was receiving medical treatment all along. He was given oral medications or injections. It was also stated in the report that there were eye concerns in the defendant. Arrangements were therefore made for him to seek medical consultation from the eye hospital to see if he was affected by diabetic retinopathy. Arrangements were also made on two occasions when the defendant was sent to the Emergency Room of Queen Elizabeth Hospital to receive treatment. He was hospitalised for 4 days on one occasion from 21^st to 24^th of March. The Medical Officer stated that the general condition of the defendant was stable without mentioning how many injections of insulin a day the defendant required.

Mitigation Advanced

In respect of the defendant’s medical report, I was informed by Mr Ho that the defendant currently requires 4 injections of insulin a day instead of 2 daily injections previously. In his submission, Mr Ho said that the increased number of injections from 2 previously to 4 currently signified that the defendant’s condition would be getting worse and worse according to proportional mathematic. He therefore urged the court to take into consideration the defendant’s medical condition and pass a lenient sentence. However, Mr Ho was unable to cite any authority to support his submission in this regard. Mr Ho went on to submit in mitigation that the defendant was a first-time offender of narcotic offences and he pleaded guilty.

There is an old case in the Law Reports of the year 1994, at page 69 of the HKCLR. The case being Attorney General v Pedro Nel Rojas where the accused is a foreigner. In that case, the Court of Appeal said that the sentencing guidelines relevant to heroin laid down in Lau Tak Ming should be applicable to cases relating to the trafficking of cocaine. However, no clear sentencing guidelines were laid down in Lau Tak Ming for the trafficking of heroin in excess of 6,000 (sic) grams. It merely said that such quantity should attract a starting point of more than 20 years’ imprisonment.

It is in the subsequent case of Abdallah, [2009] 2 HKLRD 437, where the accused is also a foreigner, that the Court of Appeal laid down the starting point for the trafficking of heroin or cocaine in substantial quantity. According to the sentencing guidelines, the starting point for trafficking 600 grams to 1.2 kilograms of heroin or cocaine is 20 to 23 years without taking into account any circumstances for enhancement and reduction. In general, one of the aggravating circumstances that may add to the sentence which would otherwise be imposed is the involvement of international element in the commission of the offence. Apparently, the present case involves an international element as the parcel was delivered from Trinidad to Hong Kong. The Court of Appeal further said that not less than 2 years’ imprisonment will be added to the sentence taking into account the international element if the narcotic weight is in excess of 1 kilogram. In other words, not less than 2 years will be added to the new starting point to reflect the imposition of a harsher sentence taking into account the aggravating circumstance.

Having taken into consideration the facts of the present case and the quantity involved, I am of the view that the starting point should be 22 years, enhanced by 2 years due to the aggravating factor of international element. In other words, the starting point is 24 years before a one-third reduction, a discount to which the defendant is entitled for pleading guilty before me.

I shall now turn to the issue of whether medical condition, that is whether a defendant with a weak constitution, is a legitimate mitigating factor for further reduction. The Court of Final Appeal saidin the case of Yip Kai Foon（葉繼歡）[2002] 2 HKCFAR 31 so far as the medical report is concerned, “under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity”.

The Court said in another case HKSAR v Bayanmunkh ([2012] 2HKC 233), “the courts could not by their sentence appear to endorse the view that ill-health was a licence to commit crime or in some way shield an accused from the consequences of his conduct”. Moreover, the courts expect that the Correctional Services Department will provide appropriate medical services for the needs ofeach defendant.

I shall now return to the present case, although the defendant told the court through his counsel that he requires 4 injections of insulin daily, I could not simply take counsel’s submission at face value thata higherfrequency of daily injection is an indication of particular severity of his condition. Multiple injections in small dose may be administered instead of a single injection in a very large dose at one go. I do not have the benefit of such knowledge as no information in this regard has been given by the Medical Officer. Most significantly, however, the Medical Officer has stated very clearly that the general condition of the defendant is stable. In addition, I have also taken into consideration that the defendant has been detained for almost a year. He has been receiving medical services provided by the Correctional Services Department all along. Nothing has been mentioned that the Correctional Services Department has any particular problem rendering inability on their part to provide appropriate medical services for the defendant.

Based on the foregoing, I do not see any other grounds save the defendant’s own guilty plea to reduce the sentence any further. I have said just now I am of the view that the starting point for sentence before reduction is 24 years, after a one-third discount, the appropriate sentence is 16 years’ imprisonment.

The defendant therefore has to serve 16 years’ imprisonment for the offence of trafficking in a dangerous drug.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.