HKSAR v. HUANG LIXUAN

HCCC 271/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 271 OF 2017

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

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COURT:

The defendant, Mr Huang Lixuan pleaded guilty to one count of trafficking in a dangerous drug during the committal proceedings. The offence is contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of the offence are that the defendant, on the 29 November 2016, at Customs Arrival Hall, Lo Wu Control Point, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 22.3 grammes of a crystalline solid containing 21.6 grammes of methamphetamine hydrochloride.

He is committed to this court for sentencing.

Facts Admitted

At 4.49 pm on 29 November 2016, a Customs & Excise officer intercepted the defendant at the Customs Arrivals Hall at Lo Wu Control Point for customs clearance, and found, inside the handbag of the defendant, a box of “Monkey bezoar powder” containing a “lai see” packet inside which there was a plastic bag containing a dangerous drug namely methamphetamine hydrochloride.

Under caution, the defendant said that the “Ice” was for his own consumption.

Another plastic bag of methamphetamine hydrochloride was found inside a “lai see” packet contained in a recycle bag carried by the defendant. Under caution, the defendant gave the same answer.

Inside the right trousers pocket of the defendant, a cigarette box containing a plastic bag of methamphetamine hydrochloride balls was found.

Under caution, the defendant gave the same answer.

The total amount of dangerous drugs found was 22.3 grammes of a crystalline solid containing 21.6 grammes of methamphetamine hydrochloride, which had an estimated retail value of $7,470.5 at the time of seizure.

Cash of HK$167.6 and renminbi 144.5 were found on the defendant.

Travel records reveal that the defendant had departed Hong Kong at the same control point at 8.02 pm on 28 November 2016.

Criminal Record

The defendant has three criminal convictions, none of them was dangerous drugs related. He was last convicted of the offences of unlawful possession of dutiable goods and failing to declare to a member of Customs & Excise on 20 February 2017, for which he was fined a total of $2,000.

These two offences were in fact committed at the same time as the present case.

Mitigation

The defendant is aged 42. He was a construction site worker earning about $14,000 a month. The counsel for the defence informs the court that the defendant is married with two daughters who are all living in mainland China. The defendant has to support them and an elderly mother who is aged over 80 years in Hong Kong.

After the defendant came to Hong Kong from China to join his parents in 2014, the defendant was under pressure with his work, which was not steady, and also due to the separation of the defendant from his family, he started to abuse “Ice”. He now has to consume “Ice” two to three times a day with a dosage of about 0.5 grammes each time.

He purchased 25 grammes of “Ice” in China for 1,700 renminbi. After consuming about 2 grammes of the “Ice” in China, he took the rest to Hong Kong, intending to keep half of them for his own consumption, and half of them for sale to finance his baneful habit.

Counsel for the defence submits to court mitigation letters of the defendant, his wife, and his two daughters. The defendant states in his letter how he had become addicted to “Ice”, which is similar to what the counsel for the defence tells the court. The defendant also expresses remorsefulness for committing the present case in the letter.

The wife and the two daughters say in their letters that they have now lost the sole breadwinner of the family.

The defendant, the wife and the two daughters all asked for leniency of the court.

The counsel for the defence stresses that the defendant has pleaded guilty and that half of the dangerous drug in question was for the defendant’s own consumption. He points out the factors which are relevant in this connection. He also submits to court a certificate showing that the urine test which was conducted when the defendant was admitted to Correctional Services Department, revealed that it was positive to “Ice”.

The counsel asks the court to give a further 10 per cent discount in addition to the discount for the plea of guilty to the defendant in the circumstances.

The counsel also asks the court to enhance the sentence of the defendant of not more than 6 months to reflect the drugs being taken to Hong Kong from China.

Sentence

According HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the normal starting point for trafficking in a quantity of 10 to 70 grammes of “Ice” is 7 to 11 years imprisonment.

The amount of “Ice” in the present case is 21.6 grammes, and the starting point is about 7 years 9 months imprisonment.

The defendant committed the offence mainly for economic reasons. This, of course, cannot constitute a valid ground for mitigation. The court does not see any justification to depart from the sentencing guidelines, thus adopting 7 years 9 months imprisonment as the basic starting point.

In the present case, the defendant took the dangerous drugs across the border from China to Hong Kong, and this is an aggravating factor which the court has to consider. Having referred to the case of HKSAR v Chung Ping Kun CACC 85/2014, and other similar cases, the court enhances the starting point to 8 years imprisonment.

Regarding the mitigation of the defendant that half the dangerous drugs was for his own consumption, the prosecution expresses no strong view, and leaves the matter to the court.

Having considered the quantity and value of the dangerous drugs, the background of the defendant, and what the defendant said under caution when he was arrested, the court accepts the mitigation of the defendant, and decides to give him a further 10 per cent discount on top of the discount given to him for his plea of guilty.

The court therefore sentences the defendant to 4 years 9 months imprisonment.