HKSAR v. YAU KWOK YIN

HCCC 187/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 187 OF 2015

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

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COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 8 May 2015.

The Particulars of Offence provide that on 28 August 2014 in Hong Kong, together with Chan Yik-tung, the defendant unlawfully trafficked in a dangerous drug, namely, 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride.

The Summary of Facts, which has been admitted by the defendant provides as follows, which I shall quote in full:

“1. In early August 2014, Chan Yik-tung (‘Chan’), a 22-year-old female, became acquainted with the defendant (male aged 26) in a social gathering.

2. They subsequently had telephone contact with each other.  Chan told the defendant that she was looking for a job.  A few days later, the defendant called Chan. He told Chan that a travel job was available and she would be given $50,000 to $100,000 as a reward for completing the job.  Chan agreed.

3. They met up.  The defendant drove Chan to Nan Fung Centre in Tsuen Wan and asked her to find a travel agency for booking a tour to Japan.  Chan collected some information and passed it to the defendant.

4. On 19 August 2014, the defendant drove Chan to Royal View Hotel.  He instructed Chan to rent a room at this hotel and take a suitcase from his car to the hotel room.

5. Chan rented Room 1537 (‘the Room’) with money given by the defendant.  After leaving the suitcase in the Room, Chan left the hotel and passed the access cards for the Room to the defendant.

6. On 20 August 2014, the defendant drove Chan to Nan Fung Centre, where Chan booked a guided tour to Japan, as instructed by the defendant.  The fee for booking the tour was paid by the defendant.  Chan then passed the receipt and her passport to the defendant.

7. Chan later received a telephone call on a mobile phone given to her by the defendant.  The caller was a male.  He asked Chan when she would arrived in Yuen Long and asked her to go to the car park of Sun Kong Hotel.  Chan related the message to the defendant.

8. The defendant drove Chan to the car park of Sun Kong Hotel.  After they arrived, the male told them on the phone to find a blue private car and to collect a recycling bag placed on the ground near this car.  Chan found and collected the recycling bag as instructed by the defendant.

9. The defendant drove Chan to Royal View Hotel.  He told Chan to take the recycling bag into the Room and to extend the hotel stay.  Chan did as told.

10. On the following day, the defendant drove Chan to Royal View Hotel and asked her to collect the suitcase from the Room.  Chan went into the Room.  Chan opened the suitcase and saw many plastic bags containing some hard substance.  She left the Room with the suitcase and checked out.

11. After that, Chan took a taxi from Royal View Hotel to Cheong Wah Building in Tsuen Wan with the suitcase, as instructed by the defendant.  While Chan was on her way to Cheong Wah Building, the defendant followed her in his own private car.

12. Chan arrived at Cheong Wah Building and left the suitcase inside a flat, as instructed by the defendant who had provided her with the keys to the flat.

13. Chan subsequently received a phone call from the travel agency informing her about the cancellation of the guided tour which she had booked because of insufficient booking.

14. On 22 August 2014, she informed the defendant about this matter.  The defendant drove her to Nan Fung Centre.  They obtained a refund and then booked a guided tour to Japan with another travel agency.  The departure date was 28 August 2014.

15. On 28 August 2014, Chan met up with a male and followed him to a flat at Cheong Wah Building.  Inside the flat, she collected a suitcase and then proceeded to the Hong Kong International Airport (‘the airport’).

16. On the same date, police officers conducted an anti-dangerous-drugs operation at the airport.

17. At around 7.10 am, Chan arrived at the airport with the suitcase which she had collected from Cheong Wah Building.

18. The defendant called Chan, telling her that he had also arrived and asked her to meet him at Zone E.  The defendant then appeared and approached Chan.  He inserted a phone battery and a SIM card into a mobile phone for Chan.  The defendant then walked away.

19. At around 8.30 am, Chan approached the counters at Zone E with her suitcase to check in for a flight to Japan.  She was intercepted by police officers.

20. A search of the inner compartment of her suitcase produced nine plastic bags containing a total of nine plastic bags of suspected dangerous drugs.

21. The suspected dangerous drugs were confirmed to be a total of 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride.

22. Chan was arrested.  The defendant was also arrested on the same date at the airport.

23. In August 2014, the estimated retail value of the seized dangerous drugs was HK$1,750,860.

24. On 29 August 2014, Chan positively identified the defendant at an identification parade and confirmed that he was the male who had arranged her to participate in the present drug trafficking activity.”

By way of personal background, the defendant is 27 years of age. He was born in Hong Kong in December 1987. He is married. The defendant has received education up to Secondary Form 3 in Hong Kong. After leaving school, the defendant had worked as a transportation worker and as a chef. The defendant had also assisted his mother-in-law in running a shop in a shopping centre, but it was closed down in July 2014.

The defendant’s wife is 19 years old. They have a 1-year-old baby girl. The defendant’s wife has deserted him since his arrest and the baby girl is left in the care and custody of the defendant’s parents, who are respectively 58 and 52 years old.

The defendant has three previous criminal convictions, none of which is related to dangerous drugs.

On 22 May 2013, the defendant was sentenced to 2 months’ imprisonment, suspended for 3 years, for an offence of fraud. Thus, the present offence was committed during the period of suspension.

In mitigation, Mr Hanif Mughal submitted on the defendant’s behalf that the most substantive mitigating factor is the defendant’s timely guilty plea, which shows remorse.

I agree.

I am further told that the defendant committed the offence because of financial difficulties. He was promised $50,000 as a reward to courier the drug to Japan. Later, the mastermind regarded the defendant not to be suitable to act as a courier. Instead, the defendant was promised $15,000 to recruit someone to act as the courier.

It is, however, clear from the Summary of Facts that the defendant has taken a full role in the commission of the present offence.

Two mitigation letters have been submitted to the court: one from the defendant and the other from his father.

However, as realistically accepted by Mr Mughal, personal circumstances of the defendant offer little mitigation in a drugs offence as serious as the present case.

The dangerous drug involved in the present case is 4.11 kilogrammes of a crystalline solid containing 4.02 grammes of methamphetamine hydrochloride. The offence was committed on 28 August 2014, ie after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the “Ice” drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the “Ice” drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 4,000 to 15,000 grammes of heroin, the guideline starting point after trial should be 26 to 30 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (4.02 kilogrammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 26 years’ imprisonment.

The defendant was caught trying to have the drug in question brought from Hong Kong to Japan. The initial starting point of 26 years’ imprisonment should be enhanced by 2 years for the international element in the present case [see: HKSAR v Abdallah (supra) at paragraphs 42 and 43]. This would take the starting point up to 28 years’ imprisonment.

I shall give the defendant a full one-third discount for his guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.

Defendant, can you please stand up?

The defendant is accordingly sentenced to 18 years and 8 months’ imprisonment.

Further, the 2-month suspended sentence in KC 537/2013 is activated in full, to run consecutively to the sentence imposed in the present case.