HKSAR v. LO SZE TUNG, STEPHANIE AND ANOTHER

HCCC 104/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 104 OF 2017

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

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COURT:

1st and 2nd defendants, you have pleaded guilty on 20 March 2017 to separate charges of trafficking in dangerous drugs before the Eastern Magistracy.

The 1st defendant, you pleaded guilty to Charge 1, and the 2nd defendant Charge 2, on the indictment. Both of you committed offences on 2 September 2016 at the Lok Ma Chau Control Point, New Territories, Hong Kong.

1st defendant, you admitted to unlawful trafficking in 1,005.28 grammes of crystalline solid containing 979.11 grammes of methamphetamine hydrochloride.  2nd defendant, you admitted to unlawfully trafficking in 1.99 kilogrammes of a crystalline solid containing 1.94 grammes of methamphetamine hydrochloride, commonly known as ‘ice’. 

Upon your pleas of guilty, you have been committed here to the Court of First Instance for sentence. These two trafficking offences were committed as a result of you both bringing drugs into Hong Kong from China.

On 2 September 2016, at about 8.20 pm, 1st defendant, you were intercepted at the Lok Ma Chau Control Point Arrival Hall by customs officers for customs clearance. Upon search of your bag, a transparent bag of ‘ice’ was found. A small plastic bag of ‘ice’ was also found in your left trousers pocket. The total of the ‘ice’ found was as stated in the charge and at the material time the ‘ice’ had an estimated retail value of $364,916.

Under caution, you admitted that you were crossing the border with another man who was going to be using another control point as he was coming in a private car. That man was D2. You also informed the customs that you were willing to participate in a controlled delivery.

At about 8.55 pm on the same day, customs officers intercepted D2 on board an incoming seven seater vehicle. He was one of the passengers. In the rucksack carried by D2, the officers found the drugs in two packets being the quantity as stated in Charge 2. At the material time, the ‘ice’ that D2 was carrying had an estimated retail value of $722,370. Under caution, D2 claimed that he was helping an unknown male to carry the drugs from Huanggang Control Point for a reward.

At about 8.48 and 8.56 pm, D1 had received calls allegedly from D2 who said he was still waiting to cross the border. Upon D2’s arrest, there was a confrontation at 10 minutes past midnight on 3 September whereby you both (D1 and D2) confirmed you knew each other. Between 8.58 and 11.35 pm, the 1st defendant received calls from the recipient of the drugs who urged her to act quickly and asked if she was together with the 2nd defendant. She was told to deliver the drugs to Bute Street in Mong Kok. She was willing to participate in a controlled delivery.

Although it is not reflected in the summary of facts, Mr Andrew Cheng, Senior Public Prosecutor, has filled in some of the information of which Mr Woon for the 1st defendant and Mr Fan for the 2nd defendant does not challenge.

The drugs that D1 and D2 were carrying over to Hong Kong separately were destined for the same recipient. The drugs were to be delivered in one go together, the total amount of drugs, by the 1st defendant to the recipient. In other words, the drugs that D2 was carrying to Hong Kong was to be given to D1 to be delivered by D1 to the recipient together with the drugs she had in her possession. Although D2 consented to participate in a controlled delivery, this was not done as it would have been against the arrangements made by the recipient.

Therefore, at 1.05 am on 3 September, customs officers brought only D1, the 1st defendant, to McDonald’s restaurant in Mong Kok for the purposes of a controlled delivery. Between 1.05 am and 5.38 am, the 1st defendant had a number of phone calls with a male Ah Lung, who was the alleged recipient and his agents. In the phone calls, the 1st defendant and the callers negotiated about the venue of handing over of the drugs. At the end, no one turned up to collect the drugs and the operation was terminated.

As noted in the summary of facts, the 1st and 2nd defendants’ video-recorded interviews are wholly different from each other’s. Mr Woon and Mr Fan note that and say nothing more but only confirm that one rucksack containing three large bags of the drugs were divided between the 1st and 2nd defendant to bring to Hong Kong.

Turning then to deal with mitigation. I turn to the common factors of both the 1st and 2nd defendants. They met socially and were both in financial constraints and were both looking for ways to make money. Trafficking in these drugs was one way to ease their constraints and that is how they both became involved in this offence.

They both pleaded guilty at the earliest opportunity and have both expressed through their counsel in a written letter that they are very remorseful for their commission of this serious offence. That is certainly their strongest mitigating factor, and, on that basis, they do and will receive a one-third discount.

As for D1, she did participate in a controlled delivery but, due to no fault of hers, that did not come to any fruition. I consider she deserve a further discount to which I shall give a total of 40 per cent discount.

As for D2, Mr Fan accepts that although he was willing to participate, he did not because of the circumstantial facts. Therefore, even though he was willing to participate, I am unfortunately unable to give him any discount as regards his willingness.

Turning to the backgrounds of the 1st and 2nd defendants.

1st defendant, you are 36 years of age. You have two previous convictions, both of possession of dangerous drugs, and the last conviction was some 16 years ago to which you were sentenced to DATC. You are divorced and I am told by Mr Woon that unfortunately, the money you had saved working as a manager in cosmetics shop, you had been deceived of all your savings by your husband and therefore you agreed to commit this offence for a $5,000 reward so as to find a place to live in Hong Kong. Since you have been remanded in prison, you have sought and now become Christian, and I have received both letters here from Hong Kong Christian Kun Sun Association Limited and the Christian Prison Pastoral Association Limited.

As for the 2nd defendant, he is 22 years of age, of clear record, Form 6 education level, and worked as a mobile phone accessory wholesaler. He is single and unfortunately, as Mr Fan has said, from a very young age his parents had divorced and from the age of 14 he stopped living with his father and lived in a charity home for a period of time. When he was 18, he moved to Shenzhen for more affordable living and commenced his mobile phone accessory employment. In his letter to the court, he has reflected his wrongdoing and he knows that he will be spending a not a short period of time in prison and looks to improve himself during his remand.

Defendants, you had trafficked in large quantities of ‘ice’ and the guideline for trafficking in ‘ice’ was stated in Tam Yi Chun. Tam Yi Chun indicated that for larger quantities of ‘ice’ then the guidelines as set out in Abdallah is applicable.

I turn first to deal with the 1st defendant’s sentence. 1st defendant, you trafficked in 979.11 grammes of ‘ice’. The guideline starting point for traffickers after trial, subject to enhancement, for 600 to 1,200 grammes is one of 20 to 23 years’ imprisonment. The starting point I adopt therefore is one of 21 years and 9 months’ imprisonment.

You had brought these drugs across the border from China to Hong Kong; there is therefore an international element involved by bringing these drugs into Hong Kong and I shall enhance the starting point by 23 months. Therefore, the sentencing point, had you been convicted after trial, is one of 23 years and 8 months’ imprisonment.

I mentioned earlier that you will be given the full one-third discount for your plea of guilty and you participated in a controlled delivery, and therefore the total discount will be one of 40 per cent. The resulting sentence to which you shall serve will therefore be 14 years and 2 months’ imprisonment.

I turn now to D2. 2nd defendant, you had trafficked in 1,940 grammes of ‘ice’. That falls within the bracket of 1,200 to 4,000 grammes. As a guideline starting point for traffickers after trial, subject to enhancement, a term of between 23 years and 26 years’ imprisonment is appropriate.

Given the quantity of drugs that you were trafficking in, an appropriate starting point, had you been convicted after trial, I consider to be one of 23 years and 9 months’ imprisonment. You had brought these drugs across the border from China to Hong Kong, therefore that is an aggravating factor calling for an enhancement and I enhance that term by 24 months. That would mean a sentencing point of 25 years and 9 months’ imprisonment. You have pleaded guilty at the earliest opportunity and therefore I shall accord you the one-third discount. You shall therefore be sentenced to 17 years and 2 months’ imprisonment.