HKSAR v. ZHANG XINHUA

HCCC 192/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 192 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty to trafficking in a dangerous drug at the earliest opportunity in the Magistrate’s Court.  He is therefore entitled to a one third discount to his sentence.  During the course of mitigation at the last hearing, I was informed that the defendant wished to discuss his case with the authorities.  I granted a two-week adjournment for this to be done.  I am informed that at this stage there is no further matter that needs to be addressed when sentencing the defendant.

The brief facts

2.  The facts giving rise to the offence are that on 20 August 2016, a team of police officers had the defendant under observation. As the defendant was about to enter a building (Wing Tak Building, 44 Portland Street, Yau Ma Tei), he was stopped by the police officers.  He was holding a blue recycle bag at the time which was found to contain a total of 1,990 g of a crystalline solid containing 1,920 g of methamphetamine hydrochloride, commonly known as Ice.  The drugs were packaged in a bamboo charcoal deodoriser.  The street value of the drugs seized at the time of the offence was $688,540. 

3.  The defendant was arrested and cautioned, and in response said: “My boss told me to go to Olympian City to fetch a bag of Ice and drop it off here.  I haven’t received any reward yet.”  He explained that “here” means “13^th floor of number 44”, and that the keys were inside the recycle bag. 

4.  The police officers gained entry to a flat on the 13^th floor of the building with the keys found on the defendant, where they found some more drugs.

5.  In a subsequent video recorded interview, the defendant gave more details to the police about his involvement in this offence.  He said that about two months prior he got to know a male named “Ah Wai” in China.  He asked him for a job.  In the evening on 20 August 2016, Ah Wai called him and asked him to deliver something for $3,000.  He said someone would call him shortly.  Later an unknown male called him, and instructed him to go to the taxi stand at Olympian City to pick up a blue recycle bag containing “pork” and to then deliver it to the flat.  “Pork” was a reference to “Ice”.  The defendant did as he was instructed, and found inside the bag three keys.  He then took a taxi to the flat.  He knew how to get to the flat as Ah Wai had taken him there for drinking tea.

The defendant’s background and mitigation

6.  The defendant is 53 years old.  He was born in mainland China where he received only primary school education.  After leaving school, he worked as a construction worker but was unemployed, and living in mainland China, at the time of this offence.  He recently married a Hong Kong resident in 2016 and was in the process of applying for residency in Hong Kong.  He had previously been married and has a daughter who is 29 years of age.  She lives in mainland China. 

7.  I have had submitted to me a letter from the defendant’s daughter.  She speaks of her father as a responsible and caring person who always looked after her.  She informs me that the offence her father committed was out of character, and as a result of mixing with the wrong people.  I accept what she had said.

8.  The defendant has a prior conviction for resisting a police officer for which in October 1988 he was sentenced to 3 months’ imprisonment.  I have not taken it into account in relation to the sentence of this offence.  I inquired of the prosecution as to whether the defendant has a criminal record in mainland China but I was informed that such information was not available.  It seems to me as a matter of course that the law enforcement authorities should make appropriate and necessary inquiries of persons from outside Hong Kong when they come before the courts, so that when a defendant is being sentenced, the court is given as much relevant information about the person’s background and criminal record.  Such inquiry should be made particularly when the defendant concerned is a citizen from the Mainland. 

The sentence

9.  The tariff guideline for trafficking in this quantity of Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. It fixes a tariff for a narcotic content of over 600 g of Ice of 18 years’ imprisonment and upwards and further provides that for very large quantities of over 600 g the principles laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 should apply.  So far as material, it fixes a tariff guideline for 1,200 to 4,000 g of Ice of 23 to 26 years’ imprisonment. 

10.  Based on the narcotic content of the drug of 1,920 g and the circumstances of the case, I would adopt a starting point of 23 years and 9 months’ imprisonment which I would reduce by one third for the defendant’s guilty plea to 15 years and 10 months’ imprisonment.  I will further reduce the sentence by 10 months because of the role played by the defendant in this crime and his cooperation with the police at the time of his arrest as well as the view that I have taken as to his background and circumstances which led him to commit an offence that he would not have otherwise had committed. 

11.  Accordingly, the defendant is sentenced to 15 years’ imprisonment.