HKSAR v. YUE WAI YAN

HCCC 396/2018

[2019] HKCFI 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 396 OF 2018

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AND

HCCC 397/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 397 OF 2018

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(Heard together)

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REASONS FOR SENTENCE

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Introduction

1.  The above two drug-trafficking cases actually arose from the same facts.  Female FAN Po-ki (“FAN”) was the First Accused and Male YUE Wai-yan (“YUE”) was the Second Accused when they first appeared in the Fanling Magistracy in March 2018.  The case was later transferred to the Eastern Magistracy for committal proceedings in July 2018.  FAN and YUE was jointly charged of “trafficking in a dangerous drug”, namely 302 grammes of heroin hydrochloride (Count 1) and YUE was separately charged of another count of “trafficking in a dangerous drugs”, namely 520 grammes of heroin hydrochloride (Count 2). 

2.  On 17 December 2018, FAN pleaded guilty to Count 1 whilst YUE pleaded not guilty to both counts at the Eastern Magistracy.  FAN was committed to the Court of First Instance for sentence whilst YUE for trial.  Subsequently, the case was separated into two with different case numbers (HCCC 396/2018 and HCCC 397/2018) so that YUE would stand trial for both counts alone without being prejudiced by the fact that FAN had already pleaded guilty to Count 1.  The mitigation and sentence of FAN was scheduled to take place after the conclusion of trial of YUE.

3.  The trial of YUE was set down for 12 days after he maintained his not guilty pleas in the Case Management Hearing and was scheduled to be heard on 10 May, 2019 in the Court of First Instance.  On 8 May, 2019, 3 days before the trial, however, the solicitors for YUE informed the court in writing that he would now plead guilty to the two counts against him.  On the first day of the trial, FAN confirmed her plea on her sole count in HCCC 397/2018 and agreed to the summary of facts pertaining to the count before me.  YUE also pleaded guilty to both counts in HCCC  396/2018 but the case was adjourned so that the Summary of Facts can be prepared for the purpose of sentencing.  On 15 May, YUE agreed the summary of facts pertaining to those two counts and was convicted accordingly.

Brief facts

4.  As said, the present two cases were originally arising from of the same factual background.  I shall conveniently deal with the facts of these two cases together for the purpose of sentencing. 

5.  At around 10:04 am on 16 March 2018, customs officers at the Customs Arrival Hall of the Lo Wu Control Point, New Territories, Hong Kong intercepted FAN for a check after she entered the Green Channel.  After the check, FAN, who was carrying a handbag, was asked to have a further search.  Upon search, one green plastic packet (wrapped by adhesive tape) (Exh.P1) containing 347 grammes of a mixture containing 302 grammes of heroin hydrochloride (Exh.P7) was found being concealed between FAN’s trousers and her underpants.

6.  FAN was arrested.  Under caution, she said that she was asked by a male called “Ah Yan” to bring it across the border.  Ah Yan took P1 out of his backpack and gave it to her at the KFC restaurant in the Mainland to bring it across the border.  Ah Yan wore a red V-neck T-shirt and jeans, and she needed to follow him to China Travel Service in Mong Kok.

7.  Upon search of FAN, cash of $16.9, a mobile phone and a Hang Seng Bank card were found.

8.  At about 10:12 am on the same day, customs officers intercepted YUE, whose clothing and appearance matched the description provided by FAN of the male called “Ah Yan”, at platform No 1 waiting area on the 2^nd Floor of the Lo Wu MTR station.  YUE was carrying a black rucksack at that time.  Upon search of YUE on his body, one green plastic packet (wrapped by adhesive tape) (Exh.P8) containing 259 grammes of heroin hydrochloride (Exh.P14) and one green plastic packet (wrapped by adhesive tape) (Exh.P15) containing 261 grammes of heroin hydrochloride (Exh.P20) were found which were concealed at his back between his trousers and underpants. A mobile phone, cash of $243.5, cash of RMB74 and a SIM card frame (without SIM card, which was later found to have been inserted in FAN’s mobile phone) were also found during the search.

9.  FAN was asked whether she agreed to participate in controlled delivery operations to which she agreed. In the controlled delivery operation, FAN’s mobile phone received numerous calls from various numbers in relation to the delivery of Exh. P1.  FAN told the person on the other side of the call that Ah Yan’s mobile phone battery was dead, and he had given her his SIM card to use in her mobile phone.  FAN was later brought to Mong Kok, where she received more telephone calls from the package recipients, who said that they would come to her to pick up Exh.P1.  However, those recipients did not show up in the end and the controlled delivery was called off without fruitful result.  FAN was later arranged to participate in an identification procedure on the same date and she positively identified YUE as her companion to cross the border together. 

10.  Travel records of FAN and YUE were reviewed.  FAN’s record showed that she left and entered Hong Kong via Lok Ma Chau Control Point twice on the date of her arrest.  YUE’s travel pattern was the same as FAN and he was leaving and re-entering Hong Kong at the same time as FAN.

11.  The seized packages of dangerous drugs were later sent to government laboratory for examinations and Exh.P7, P14 and P20 were confirmed by the government chemist to be 302 grammes, 259 grammes and 261 grammes of heroin hydrochloride respectively.

12.  The fingerprint expert also found five fingerprints marks on the adhesive tapes wrapping Exh.P1 which contained Exh.P7. After comparison, the fingerprint expert’s opinion is that those fingerprint marks belonged to YUE’s left thumb.

13.  The estimated value of the seized heroin found on FAN (Exh.P7) is $253,310 and of the heroin found on YUE (Exh.P14 and P20) are $256,960 and $260,610 respectively.

14.  In pleading guilty to their offences, FAN and YUE now admit and accept that at all material times, they knowingly and unlawfully trafficked in the seized dangerous drugs as respectively charged.

Background and mitigation of FAN

15.  FAN is 24 years old and she was born in Hong Kong.  She only completed lower secondary education and before her arrest, she worked as a bar girl with a monthly income of $15,000.  She is not married but she is already a mother of 3 children.  The eldest child is only about 4 years old whilst the youngest child is only about 12 months old.  She has only one previous record of “possession of DD” in May 2018 for which she was sentenced to the DATC.  I was informed however that she has committed another case of credit card fraud and she was charged in the District Court.  She has earlier indicated her guilty plea to the charge and the case has been set down for sentence in July this year.

16.  In mitigation, Mr Percy, counsel on behalf of FAN, urged me to consider the welfare of the three young children as well as the family background of his client.  I was told that the three little children were born with two different fathers.  They are now separated with each other and the mother and they are staying in three different foster families.  The father of the eldest daughter disappeared after she was born and FAN herself also came from a broken family.  FAN’s own father also disappeared when she was still a young child at the age of 6.  Her mother, I was told, was also a drug addict and is now serving her time for “trafficking in a dangerous drug” in Stanley Prison.  Mr Percy described that FAN grew up in a dysfunctional family and for the present offence, she was acquainted with YUE and he invited her to go to Shenzhen and he tempted her to commit the offence by bringing the heroin from Shenzhen into Hong Kong in return for letting her to use and reside in his public housing unit in Hong Kong.  Mr Percy submitted that she was only motivated to commit the crime for the purpose of providing a shelter for her three little children so that she would be able to properly look after them.

17.  Mr Percy acknowledged that for 302 grammes of heroin, the starting point is between 12 to 15 years according to the guideline in R v LAU Tak-ming and Another [1990] 2 HKLR 370.  He emphasized FAN’s timely plea to the offence at the first available opportunity and because of that, he urged me to give her the usual one-third discount.  On top of that, Mr Percy also prayed in aid the assistance to the authorities by FAN.  Firstly, she had co-operated fully with the Customs and Excise Department after she was arrested and she also agreed to take part in the controlled delivery of the drugs to apprehend the recipient of the drugs.  Secondly, FAN has also agreed to testify against YUE in his scheduled trial and has already given a non-prejudicial statement to the prosecution for that purpose but she was not required to do so only because YUE has now decided to plead guilty at the very last moment before his trial.

18.  Mr Percy referred me to HKSAR v LO Sze-tung Stephanie, CACC 190/2017 (unreported, 25 July, 2018) and submitted that in the circumstances, YUE is entitled to have a discount more than 40% as held by the Court of Appeal.

19.  As for the enhancement aspect due to the fact that it was a cross-border trafficking case, Mr Percy relied on HKSAR v CHUNG Ping-kun, CACC 85/2014 (unreported, 2 July, 2014) in which the level of enhancement between 250 and 500 grammes is held to be 6 months to one year. As the offence against FAN involves only 302 grammes of heroin, Mr Percy invited this court to enhance the starting point by only 6 months.

Background and mitigation of YUE

20.  YUE is now 42 years old.  He was born in Hong Kong and received education up to From Three level.  He was married in Shenzhen in 2016.  His wife is a mainlander and is still living in Shenzhen but she is applying to come to Hong Kong to live with the husband.  In the past, YUE has been brought before the court in no less than four occasions between 1990 to 2001 involving five charges, with four drug-related offences.  His last conviction was also in relation to ‘trafficking in dangerous drugs’ for which he was sentenced to 14 years’ imprisonment in the Court of First Instance in 2001.

21.  YUE’s counsel, Mr Khosa said in mitigation that after YUE was released from the prison in 2010, he was determined to turn over a new leaf and had work very hard in the following years in the restaurant.  He worked long hours every day and gradually worked his way up from a waiter to becoming a manager earning a monthly income of about $18,000-$20,000.  After he was married in 2016, his financial position became tight as he had to look after the wife as well as her family in Shenzhen.  He also re-decorated his public housing unit in anticipation that his wife would soon come to Hong Kong to join him.  As a result, he needed to spend a lot of money and he had incurred a debt of $500,000 for which he needed to repay about $5,000 each month.  In order to earn more money, he also became a part-time courier moving goods such as mobile phones between Hong Kong and Shenzhen for a reward of a few hundred dollars on each occasion.

22.  During mitigation, Mr Khosa disputed the claim by FAN that YUE was the prime mover and he had tempted her to commit the offence.  According to YUE, the roles played by him and FAN were just the same as a courier in Count 1.  FAN was also offered to receive $5,000 as a reward.  According to YUE, they were both approached by another drug dealer in Shenzhen to carry the drugs into Hong Kong and they both agreed to do the job as they both wanted to earn quick money.  YUE accepted however that he was nevertheless still guilty of Count 1 as he had assisted FAN to conceal the heroin (Exh.P7) by wrapping the green plastic packet around her underpants using adhesive tape.  In so doing, YUE admitted and accepted that he had dealt with Exh.P7 for the purpose of trafficking, namely importing the drugs into Hong Kong together with FAN.

23.  As for Count 2, YUE accepted his sole and full responsibility for bringing those two packets of heroin (Exh.P14 and P20) across the border into Hong Kong.

24.  Mr Khosa acknowledged that for 822 grammes of heroin, the starting point is between 20 to 23 years according to the guideline in R v LAU Tak-ming and Another [1990] 2 HKLR 370.  As it is a cross-border trafficking case where dangerous drugs were imported into Hong Kong, Mr Khosa also agreed that the sentence has to be enhanced and according to CHUNG Ping-kun (supra) and the level of enhancement between 500 and 1000 grammes is held to be 1 year to 2 years.  Mr Khosa also pointed out that YUE had also agreed to assist the Customs and Excise officers and take part in the controlled delivery but as his mobile phone was running out of battery and he has already given his mobile sim card to FAN so he was not involved in the operation in the end.

25.  As for YUE’s late plea, Mr Khosa referred me to HKSAR v Ngo Van Nam CACC 418/2014 (unreported; 2 September 2016) and submitted that in YUE’s case, according to the revised practice of sentencing discount laid down by the Court of Appeal, the range of discount lies between 25% and 20%.

26.  Mr Khosa also urged the court not to further enhance the sentence on account of YUE’s similar record as it happened long time before, already 18 years ago.

27.  A hand-written letter written by YUE was submitted in the course of the mitigation.  In the letter, YUE has expressed his regret for committing the offences.  He told the court how hard he was trying to re-integrate with the society after his release from prison in 2010 by working long hours in the restaurant every day and how he was tempted to commit the offences because of the enormous economic pressures that he was suffering through marriage and all the related expenses since 2016.  There is also a letter from his employer and his monthly attendance records to support his claim that he was a diligent and responsible employee during employment.  The employer has in a separate letter passed favorable comments on the character and performance of YUE and has expressed disbelieve on the commission of the offences by him.  Be that as it may, the employer still expressed their willingness to re-employ him after his release.

Sentencing considerations

28.  In sentencing the two defendants, I have borne in mind the nature and the quantity of the drugs involved in each case, the facts as admitted by the defendants, and all the matters urged on the defendant’s behalf by Mr Percy and Mr Khosa respectively.

29.  The present two cases are both drug-trafficking cases which are of course very serious criminal offences.  The maximum sentence is life imprisonment and a fine of $5,000,000.  Those who are involved in drug-trafficking cases and are convicted would expect no mercy from the court.

30.  I have of course great sympathy in particular for the welfare of the three young children of FAN but the Court of Appeal has repeatedly said in the past that family circumstances play no part in the mitigation in drug trafficking charges.  The court can never accept any economic reason for committing crimes.  The two defendants therefore are the authors of their own misfortune and have only themselves to blame for the punishments they would receive.

31.  Although there are two cases before me, as said, they actually arose from the same factual background.  There were 3 packets of drugs involved altogether, namely Exh.P7, P14 and P20.  Exh.P14 and P20 were carried by YUE on his body whereas Exh.P7 was carried by FAN on her body from Shenzhen to Hong Kong.  Both FAN and YUE are jointly charged with trafficking Exh.P7 whereas YUE is solely charged for trafficking Exh.P14 and P20.

32.  It is obvious that FAN and YUE gave different versions in their mitigations regarding the role played by YUE in relation to the trafficking of Exh.P7.  After taking instruction from the DoJ, Mr Fu, the prosecuting counsel-on-fiat, helpfully informed me that the prosecution has given the matter with some thoughts and in the end, they would not insist that YUE was the prime mover and they were contended that the court would sentence YUE on the basis of his role as a courier which is similar to the role played by FAN in relation to the trafficking of Exh.P7. 

33.  The Court of Appeal had said in HKSAR v Leung Kwai Ping & Another (No 2) [2003] 2 HKC 575 that there is no basis upon which to assume that when it laid down the guidelines in Lau Tak Ming (supra), it was intended anything other than that the courier would face a sentence based upon the weight of the drugs he or she was carrying, subject of course to such mitigating, aggravating factors that prevailed in a particular case.

34.  Clearly, being a courier is not by itself a mitigating factor and the Court of Appeal has also repeatedly stressed that couriers cannot expect to receive a reduction in sentence simply because they are couriers.  Therefore, firstly, FAN cannot expect to receive a lesser sentence just because she was only a courier of Exh.P7 and secondly, given the stance now adopted by the prosecution, it is not necessary for me to resolve the factual dispute as to whether YUE was the instigator or prime mover and I would just proceed to sentence YUE on the basis that he was a courier of Exh.P14 and P20 and he also jointly imported Exh.P7 from Shenzhen to Hong Kong together with FAN.  Both couriers would be sentenced based upon the weight of Exh.P7 accordingly.  YUE would also be sentenced based upon the weight of Exh.P14 and P20 as well.

HCCC 396/2018

35.  YUE faces two counts of trafficking heroin in respect of Exh.P7, P14 and P20.  Count 1 involves 302 grammes of heroin hydrochloride and Count 2 involves another 520 grammes of heroin hydrochloride. The heroin in both counts were imported to Hong Kong from Shenzhen at about the same time albeit by FAN and YUE separately and by pleading guilty to Count 1, YUE had already accepted that he together with FAN brought Exh.P7 into Hong Kong.  In such circumstances, I shall fix the sentence based on the total quantity of the two counts and a concurrent sentence is appropriate.  Applying the tariff as set down in the case HKSAR v Abdallah Anwar Abbas [2009] 2 HKC at 197, a global starting point of 21 years and 3 months’ imprisonment is appropriate for both counts. 

36.  In the present case, as YUE was bringing the drugs into Hong Kong from Shenzhen.  The Court of Appeal in the case of Chung Ping Kun, (supra), said, at paragraph 9 of the judgment:

“As a broad guideline for drugs of this kind below 1,000 grammes, we will suggest the level of enhancement as follows:

(1)  up to 250 grammes, 6 months;

(2)  between 250 and 500 grammes, 6 months to 1 year;

(3)  between 500 and 1,000 grammes, 1 year to 2 years.”

37.  As Count 1 and 2 concerns a total of 822 grammes of heroin hydrochloride.  In my judgment, an enhancement of 20 months is appropriate.  With the enhancement, the global starting point for both counts would be 275 months’ imprisonment.  There would not be any further enhancement on account of YUE’s similar trafficking record.  Firstly, the last criminal record was some 18 years ago and the present offence was committed about 8 years after his release from the prison in 2010.  Secondly, there is also evidence before me that YUE has been trying very hard to get back to the right track over the years albeit that he eventually still could not resist the financial pressure and committed the hideous crime of trafficking drugs once again. 

38.  On the information before me, in my judgment, YUE could not claim any discount for agreeing to take part in the controlled delivery because it remained just a bare promise without any actual participation in the operation.

39.  As YUE finally indicated his plea of guilty only 3 days before the first date of trial which was already so late, in my judgment, he is only entitled to a 20% reduction according to the revised guideline for sentencing discount laid down by the Court of Appeal.

40.  The 20% reduction would bring the sentences for Count 1 and Count 2 down to 220 months and that is 18 years and 4 months’ imprisonment respectively.  I order the sentences on both counts to run concurrently.

HCCC 397/2018

41.  FAN will only be sentenced on her sole count which she committed jointly with YUE in respect of Exh.P7 which involves 307 grammes of heroin hydrochloride.  As said, the mere fact that she was only a courier of the drugs would not render her less culpable as far as sentencing is concerned. 

42.  According to the Court of Appeal guidelines for trafficking heroin as stipulated in Lau Tak Ming (supra), in relation to the unlawful trafficking of heroin between 200 and 400 grammes, the range of sentence of imprisonment is stipulated to be 12 to 15 years’ imprisonment.  For 307 grammes, the appropriate starting point is therefore 13 years and 6 months’ imprisonment. 

43.  As for the cross-border enhancement, I refer myself again to the guideline as laid down in Chung Ping Kun (supra) and for 307 grammes, I consider a 6 months’ enhancement is appropriate.  That brings her starting point to 14 years or 168 months before any reduction.

44.  FAN pleaded guilty as early as in the committal proceedings and for that she should be given a full one third discount for sentence.  Furthermore, based on the information I received in respect of the total assistance to the authorities by FAN both in the controlled delivery operation as well as her decision to testify against YUE in his trial which eventually led to his guilty pleas, and having referred myself to what he Court of Appeal had said in LO Sze-tung Stephanie (supra), I decided to reduce her sentence by 72 months to 96 months and that already represents about 43% reduction in total.

45.  In the end, I sentence FAN to 8 years’ imprisonment.

Representation: -