HKSAR v. SIU KWOK FAI

HCCC 61/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 61 OF 2005

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

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COURT: Defendant, I am passing sentence on you now.

The defendant, Siu Kwok-fai has pleaded guilty before me to a single charge of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particular of offence are that on 7 November 2004, at Lok Ma Chau Border Control Point, the New Territories, in Hong Kong, the defendant, together with Tse Siu-ching, his wife at the time, who was jointly charged with him, unlawfully trafficked in a dangerous drug, namely 165.54 gram of a mixture containing 84.83 grammes of heroin hydrochloride.

He has also admitted the Summary of Facts prepared by the prosecution. The Summary of Facts reads as follows:

“1. Female Tse Siu-ching has been convicted of an offence of trafficking in a dangerous drug concerning a total of 165.54 gram of a mixture containing 84.83 grammes of heroin hydrochloride found on her person. The defendant was Tse’s husband. He has admitted under caution that it was he who asked Tse to deliver drugs from the mainland to Hong Kong. Based on his own admission, he was charged with the offence of trafficking in a dangerous drug.

This defendant was jointly charged with his wife Tse in the Court of First Instance. The trial was set down for the 17 to 26 October 2005. His wife Tse pleaded guilty and this defendant pleaded not guilty. The trial was before Line J, and commenced with the voir dire relating to the incriminating post-recorded reply made by the defendant on his arrest (see below). The result of the voir dire was that the statement was admitted.

His defence counsel applied to withdraw, and the case was adjourned until the afternoon of 19 October 2005, when the defendant failed to appear, and a warrant was issued. On 16 December 2005, his wife Tse was sentenced to 5 years’ imprisonment.

At 2.38 pm on 18 September 2015, the defendant was intercepted by an immigration officer upon arrival at Lo Wu and then arrested. The facts of the case are detailed below.

Arrest of Tse and Seizure of Drugs

2. At 1318 hours on 7 November 2004, WPC 56401 (PW1) and PC 48075 (PW3) stopped Tse for inquiry when she walked out from the arrival hall of the Lok Ma Chau Border Control Point. She was then taken to the Lok Ma Chau Police Report Centre for a search.

3. Upon a search conducted by PW1, Tse was found in possession of the following items on her person:

(1) Two packets of heroin respectively attached on each side of her waist with adhesive tape;

(2) Two packets of heroin respectively attached on each side of her breast underneath her bra;

(3) One packet of heroin inside the left front pocket of her pants;

4. The drugs were then seized by PW3 as exhibits. At the same time, PW1 arrested Tse and cautioned her. Under caution, she admitted trafficking in the drugs.

5. Tse was then conveyed to the Accident & Emergency Department of North District Hospital for examination. At 1524 hours on the same day, inside treatment room number 14 of the hospital, Tse was seen by a doctor, Chan Ka-moon (PW7). She told PW7 that she had pain in her belly. Following that, she discharged two plastic packets of heroin from her vagina in the presence of PW1 and PW7. She was then X-rayed. Afterwards, PW7 confirmed that there was no more suspicious items concealed inside her body cavity.

6. PW3 then seized two packets of heroin discharged from Tse as exhibits.

Arrest of the Defendant

7. Based on what Tse said under caution, a party of police, including PC 58734 (PW3) and sergeant 2409 (PW4) proceeded to the premises at Room 906, Tat Tsui House, Po Tat Estate, Sau Mau Ping, to locate the defendant.

8. At 1810 hours at 7 November 2004, while PW2 and PW4 were lying in ambush outside the premises, the defendant opened the door of the premises. PW2 approached them and revealed his police identity by producing his warrant card. Having confirmed his identity upon inspection of his identity card, PW2 told the defendant that he had reason to believe that he aided and abetted a female, Tse Siu-ching, that is, the defendant, in trafficking in a dangerous drug from mainland China into Hong Kong, and then cautioned him. Under caution, the defendant said, “It was me who asked her to take the stuff to Hong Kong from the mainland.” PW2 therefore arrested the defendant for the offence aiding and abetting Tse in trafficking in a dangerous drug from China into Hong Kong, and cautioned him again and asked him to clarify what he had just told him. The defendant then said, “This is to say, I asked my wife Tse Siu-ching to take the white powder to Hong Kong from the mainland.”

9. At 1814 hours on the same day, Tse was taken to the premises for a house search. The search was conducted by PW3. As a result, PW3 found a plastic bag containing a bundle of transparent plastic sheets, a bundle of plastic bags, four lighters, a clip, and three pairs of scissors inside the kitchen of the premises, and they were seized as exhibits.

Chain of Drugs to the Laboratory

10. After seizure, the drugs were kept in the custody of PW3 until he handed over the same to Sergeant 51079 (PW5) at 0007 hours on 8 November 2004. Thereafter, the drugs were kept in the custody of W sergeant 18345 (PW6) until they were delivered by DSPC 53612 (PW8) to the government laboratory for examination at 1230 hours on 8 November 2004.

Chemical Analysis

11. The drugs were examined by Dr Lee Wing-sze (PW9), and they were confirmed to be a total of 165.54 grammes of a mixture containing 84.83 grammes of heroin hydrochloride.

Value of Drugs

12. According to DSIP Chan Lap-koon, the drugs had a street value of a total of HK$55,456 as at the time of this offence.

Cautioned Statement of Defendant

13. As stated above, at about 1810 hours on 7 November 2004, once the defendant was cautioned by PW2 in the presence of PW4 outside his premises, he said, “It was me who asked her to take the stuff to Hong Kong from the mainland.” PW2 then declared arrest on the defendant for the offence of aiding and abetting Tse in trafficking in a dangerous drug from China into Hong Kong. Following that, PW2 cautioned him again and asked him to clarify what he had just told him. The defendant then said, “This is to say, I asked my wife Tse Siu-ching to take the white powder to Hong Kong from the mainland.”

14. PW2 made a contemporaneous record of the defendant’s cautioned statement in his notebook. After that, he read over the content of his record to the defendant and let him read it himself. Following that, the defendant confirmed the record by making the usual declaration and signed on the notebook.

15. At 2010 hours on the same day, PW2 issued a notice to persons in custody to the defendant, and he signed an acknowledgement of receipt.

16. Inside the police station, the defendant was interviewed by PW2 and PW4 under video between 0016 and 0026 hours on 9 November 2004. He said that he was so scared by the police during the raid that he gave an admission under caution. Actually he had no knowledge about Tse’s drug activity. She had never told him so. It was only by the time the police informed him about the arrest of Tse that he came to realise that she was engaged in drug trafficking. He admitted that he was addicted to white powder, and he consumed drugs by smoking.

Photographs

17. At 1340 hours at 7 November 2004, PW1 took four Polaroid photos of the five packets of drugs found on the person of Tse. One Polaroid of the two packets of drugs discharged by Tse was taken by PW1 inside the hospital.

Travel Index of Tse

18. According to immigration record produced by the Acting Senior Immigration Officer, Cheng Ming-fat (PW11), Tse departed for the mainland via Lok Ma Chau at 1137 hours on 7 November 2004 and returned back to the territory via the same control point at 1316 hours on the same day.”

According to the sentencing guidelines in respect of trafficking in heroin established in R v Lau Tak Ming & Others [1990] 2 HKLR 370, trafficking in 50 to 200 grammes of heroin is to be punishable with 8 to 12 years’ imprisonment.

Here, the quantity involved was 84.83 grammes, and the appropriate sentence should be around 8 years and 11 months. The heroin, the drug involved in the present offence was brought in from the mainland to Hong Kong. Therefore it involved an international element and according to HKSAR v Chung Ping Kun, decided on 2 July 2014, unreported, at paragraph 9, the Court of Appeal suggested that the level of enhancement for the international element should be 6 months for the amount of drugs it involved when up to 250 grams. And for this offence, I consider that the appropriate enhancement should be 6 months’ imprisonment.

Your counsel has said everything that can possibly be said for you, and in particular, he mentioned that part of the drugs that you trafficked in this case, through your wife, was for your own consumption. I am prepared to accept that a small part of the drugs found in this case was for your own consumption, and for that, I am prepared to reduce your sentence by about 10 per cent for self-consumption. Apart from that, for this kind of serious offence, personal circumstances will rarely have a mitigating effect.

You have a number of criminal convictions, nine in all, and three of them were for possession of dangerous drugs, the latest one in July 1998, for which you were sent to DATC, but I am prepared not to aggravate your sentence for these long-past records.

Apart from your guilty plea, I am not able to see any other mitigating factor that can reduce your sentence. But even for that, your guilty plea was not forthcoming and on an early opportunity. When your case was first tried together with Tse Siu-ching, who was the 1st defendant, and you were the 2nd defendant, she pleaded guilty, and you chose to fight the case. You made an attempt at excluding from evidence the verbal confession made by you to the police, and the post-record in the police notebook that was Exhibit P27 at the time through a voir dire, at the conclusion of which, the trial judge, Deputy High Court Judge Line, as he then was, ruled the confession and Exhibit P27 admissible. That was on 19 October 2005.

And thereafter, you absconded and disappeared from the trial, which had to be adjourned. You were only caught on 18 September 2015 at the border at Lo Wu. Where a plea of guilty is made after a challenge as to the evidence failed, the usual one-third discount is not fully given. Moreover, where an accused pleads guilty only after a long period of absconding, he may receive a less discount than the usual one-third, see Cross & Cheung, 7th Edition, pages 293-4, and the cases referred to therein.

In HKSAR v Leung Cho Yi, reported in 2009 HKCU 625, CACC 385/2008, decided on 30 April 2009, unreported, which held that if the accused only pleads guilty after an unsuccessful attempt to exclude the evidence of confession, the discount should be in the order of 20 per cent.

In the case of HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, at paragraph 29, and HKSAR v Lo Kam Fai CACC 374/2014, decided on 2 February 2016, unreported, at paragraph 80, where the accused, who earlier absconded and successfully remained a fugitive for a number of years, and he saw his discount cut to 25 per cent after he pleaded guilty. The rationale for a reduction of the discount in such circumstances is that the accused has wasted court time and resources by fighting and losing in the voir dire, and his absconding has inevitably delayed the fair disposal of his case, as well as making a second trial necessary.

Considering all the circumstances of this case, I consider that a starting point of 8 years and 11 months’ imprisonment is appropriate. For the international element, the sentence is enhanced by another 6 months. However, for the self-consumption of part of the drug, a reduction by 10 per cent is allowed. Taken into account the fact that a guilty plea is only tendered after an unsuccessful attempt to exclude the verbal confession and related evidence, and that the defendant had absconded and put himself beyond the reaches of justice for about 10 years, both of which militate against giving him the full one-third discount, I consider a discount of about 20 per cent from the starting point, as I have mentioned, as enhanced by the international element, and as reduced by the self-consumption, is appropriate.

In mathematical terms, it is 8 years 11 months plus 6 months and then globally less 10 per cent and the result again less 20 per cent. And in conclusion, I pass a sentence of imprisonment for 6 years and 9 months on you.

Court rises - 11.53 am

27 May 2016