HKSAR v. TSUI KWOK LEUNG

DCCC 1059/2024

[2025] HKDC 736

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1059 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is charged with 1 count of trafficking in dangerous drugs[1] (1^st charge), 8 counts of failing to surrender to custody without reasonable cause[2] (2^nd, 4^th, 6^th, 8^th, 10^th, 12^th, 14^th and 15^th charges)  and 6 counts of using a false instrument[3] (3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges). He pleaded guilty to the 1^st, 3^rd, 5^th, 7^th, 9^th, 11^th, 13^th to 15^th charges but not guilty to the 2^nd, 4^th, 6^th, 8^th, 10^th and 12^th charges. Upon parties’ agreement, the 2^nd, 4^th, 6^th, 8^th, 10^th and 12^th charges are to be kept in court file and not to be proceeded with without the leave from the court.

Facts

2.  All the facts relating to the charges have been set out in details in the Amended Summary of Facts dated 24 April 2025 and admitted by the defendant.  I am not going to repeat all the facts here. 

3.  In gist, on 11 May 2021, Customs officers at the airport intercepted an inbound parcel from the United States addressed to a “Tiger Lee” at the Address as set out in the Amended Summary of Facts.  The parcel contained a pot containing 450 grammes of herbal cannabis.  The estimated street value of the herbal cannabis is HK$67,500.  On 17 May 2021, the defendant went to Sham Shui Po Post Office and collected the parcel.  He was then arrested by Customs officers (1^st charge).

4.  Under caution upon arrest, the defendant admitted he collected the parcel for a friend called “Ah Wing” for a reward of HK$2,000.  He would wait for Ah Wing’s instruction as to what to do after collecting the parcel  

5.  The mobile phone in the defendant’s possession contained WhatsApp conversations about the parcel and its collection.

6.  In a subsequent video-recorded interview, the defendant stated under caution that he had known Ah Wing for 30 odd years but were not close.  Ah Wing originally told the defendant to collect the parcel at the building where the parcel was addressed to.  Later, he told the defendant to collect the “Notification of collection of parcel” card from the unlocked mailbox of the Address.  On 15 May 2021, the defendant collected 2 notification cards from the mailbox.

7.  On 10 February 2022, the defendant appeared at the West Kowloon Magistracy regarding the case for the 1^st charge.  His case was adjourned to 28 March 2022 and he was granted bail until then.

8.  Due to Covid-19, the hearing for the defendant’s case was re-scheduled to 22 April 2022. 

9.  On 22 April 2022, the defendant did not attend the court hearing. Someone on his behalf attended the hearing and showed the court the false proof indicating the defendant was infected with Covid-19 and was under isolation. As a result, the defendant’s case was adjourned to 19 May 2022 and his bail was extended on the same terms (3^rd charge). 

10.  Thereafter, similar false proof of Covid-19 (and on one occasion with letter from the defendant)  was provided to the court on 5 occasions between 19 May 2022 and 15 August 2022 while the defendant did not attend any of the hearings in between.  On each occasion, as a result of the false proof, the defendant’s case was adjourned to another date with his bail extended on the same terms and on some occasions the warrant of arrest issued earlier on was cancelled.  These lead to the 5^th, 7^th, 9^th, 11^th and 13^th charges.  His case was last adjourned to 15 September 2022.

11.  On 15 September 2022, the defendant did not attend the court hearing and a warrant of arrest was issued (14^th charge). 

12.  On 12 May 2023, the defendant was re-arrested.  He was brought to court on 13 May 2023.  The defendant falsely claimed that he failed to attend his last hearing because he was infected with Covid-19 and was under an isolation order.  As a result, his case was adjourned to 11 July 2023 and he was granted bail.

13.  On 11 July 2023, the defendant attended the court hearing.  His case was adjourned to the afternoon of the same day for the defendant to obtain his address proof and his bail was extended.  However, the defendant did not attend the court hearing in the afternoon.  A warrant of arrest was issued (15^th charge).  On 10 March 2024, the defendant was re-arrested.

14.  In subsequent cautioned interviews, the defendant admitted he wrote the the letters mentioned in the Amended Summary of Facts and had some recollection of the various false Covid-proofs.

Mitigation

15.  The defendant is aged 49.  He is single and has a girlfriend with whom he has a young son aged 3.  The defendant has been unemployed since 2023. Before that, he had been working for a period of about 4 years as a casual labourer, earning about HK$15,000 per month.  The defendant has 12 previous conviction records, 3 relating to drugs and 5 relating to dishonesty.

16.  Mr. Wong for the defence submitted that the defendant’s previous conviction for trafficking in drugs was 20 years ago, which shows the defendant had at least disassociated himself from dangerous drugs for a considerable period of time.  He urged this court not to consider the defendant’s previous conviction records when sentencing.

17.  For the 1^st charge, it was submitted that the defendant was acting as a courier and there was no evidence to show the defendant was the mastermind behind the scheme.  He was looking to make some quick money because he had been out of work and it was hard to find work during the pandemic.

18.  For the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges, it was submitted that all these related to the 1^st charge.  When the defendant was arrested for the 1^st charge, it was being processed through the magistracy during the pandemic. It was during the pandemic that the defendant’s son was born. Unfortunately, his son was born with health problems, which required and still require regular medical follow-up treatment/examinations.  As a result, the defendant was anxious for his son’s health and not ready to face the realities of dealing with the 1^st charge which he had been arrested for.

19.  In order to be able to spend more time with his son and put things off, the defendant unwisely and stupidly came up with the idea of using the false quarantine documents and submitting them to court.  It was submitted that all the false Covid-proofs were very amateurish and poorly prepared with bad formatting and spelling mistakes.

20.  For the 1^st charge, it was submitted that although the revised guidelines[4] on trafficking in cannabis was handed down on 20 January 2023, given the offence date of 1^st charge is 17 May 2021, the old guidelines[5] should apply.  It was suggested that the starting point for the 1^st charge would be about 3.5 months according to the old guidelines.

21.  In relation to the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges, Mr. Wong submitted that the purpose of the defendant using various false instruments was to prolong the length of time that would be required to process his criminal case in the magistracy (i.e. the 1^st  charge)  and lengthen his time on bail. The documents were not used to obtain monetary benefit(s).  It was accepted that the offences are serious as they misled the court into allowing the defendant to have his criminal case continually adjourned and be admitted to bail.  It was submitted that the current situation was similar to a person making a false representation to an immigration officer with a false instrument so that he/she may enter, exit or prolong his/her stay in Hong Kong.

22.  It was further submitted that if the analogy was accepted, the appropriate starting point for these offences would be in the region of 18 months[6].

23.  Regarding the 14^th and 15^th charges, it was submitted that the court usually took into account the length of time the defendant had absconded.  For each of the 2 charges, the period of absconding was about 8 months.  It was suggested a starting point of not more 6 months would be appropriate[7].

24.  In relation to the totality of sentence, it was accepted that the 1^st, 14^th and 15^th charges are of different nature to the using of false instrument offences but the 14^th and 15^th charges were a continuation of the false instrument offences.  It was submitted that the sentences for the using false instrument offences are part and parcel of one long course of criminal activity and could run wholly concurrently to each other.  It was also suggested that the sentences for the 14^th and 15^th charges could run wholly concurrently, and their sentence to run wholly concurrently with the total sentence for the using of false instrument offences.  For the 1^st charge, this court was urged to order the sentence for the 1^st charge to be partly consecutive to the sentence for other charges.

25.  Finally, it was submitted that the defendant has pleaded guilty at the first opportunity and should be granted the one-third discount.  This court was urged to impose a lenient sentence on the defendant. 

Sentence

26.  While I note the defendant has a number of previous conviction records including 3 relating to drugs, given these 3 records are over 20 years ago, I will not consider them when sentencing.

27.  The defendant pleaded guilty to the offences.  He is entitled to the usual one-third discount.  Apart from that, there is no other mitigating factor in this case justifying a further reduction in sentence.

A. Sentence for the 1^st charge

28.  It is a settled principle of sentencing that an offender is to be sentenced upon the existing or prevailing guideline or tariff of sentence which existed at the time of the commission of the offence[8]. I agree with the defence that the old guidelines as set out in AG v Tuen Shui Ming & Anor [1995] 2 HKC 798 should be applied in this case.  In view of the guidelines and the amount of herbal cannabis in this case is 450 grammes, the appropriate starting point should be 3 months’ imprisonment. Given the defendant’s plea, the sentence is reduced to 2 months’ imprisonment.

B. Sentence for the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges

29.  There is no sentencing guidelines in respect of the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges.  I accept Mr. Wong’s submissions that these offences are similar to the offences of making false representation to an immigration officer.  It is apparent from the facts admitted that planning was involved in the commission of these offences in that various false documents were prepared and arrangement for delivery of these false documents to the court was made. While the objective of the defendant was to delay his court case so that he could spend more time with his young son, this inevitably led to wasting of court time and resources and may also cause unfairness to other court users.  I consider the circumstances of the offences are serious.  Further, the defendant committed 6 offences within a period of 4 months, this is an aggravating feature.  In the circumstances, I consider the appropriate starting point for each of these charges to be 21 months’ imprisonment.  Given the defendant’s plea, the sentences for all these charges are reduced to 14 months’ imprisonment.  I accept all these offences are part and parcel of the defendant’s plan to delay his court case, the sentences for the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges are to run concurrently, making a total sentence of 14 months’ imprisonment for this group of offences.

C. Sentence for the 14^th and 15^th charges

30.  Taking into consideration the length of period of absconding for both charges, I consider the appropriate starting point for each charge is 6 months’ imprisonment.  Given the defendant’s plea, the sentence for each charge is reduced to 4 months’ imprisonment.  The sentence for this type of offence should normally be served consecutively to the sentence imposed for the substantive offence from which the defendant absconded[9]. I do not see any justification to depart from such practice in this case. 

D. Totality of sentence

31.  Having considered the totality principle, the sentence for the defendant is as follows:

(1)  1^st charge: 2 months’ imprisonment, whole sentence to run consecutively to the total sentence for the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges;

(2)  3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges: 14 months’ imprisonment for each charge, all to run concurrently making a total sentence of 14 months’ imprisonment;

(3)  14^th charge: 4 months’ imprisonment, 2 months of the sentence to run consecutively to the total sentence for the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges;

(4)  15^th charge: 4 months’ imprisonment, 2 months of the sentence to run consecutively to the total sentence for the 3^rd, 5^th, 7^th, 9^th, 11^th and 13^th charges;

(5)  total sentence for all charges is 20 months’ imprisonment.