HKSAR v. CHEUNG HOI SANG AND ANOTHER

DCCC985/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 985 OF 2010

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Reasons for Sentence

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1.  You have each been convicted on your own pleas of doing an act preparatory to or in furtherance of the manufacture of a dangerous drug, contrary to section 40(1)(c) of the Dangerous Drugs Ordinance.

2.  On 8 May last year, at about 8.25 am, a team of customs officers noticed you both acting suspiciously in the departure hall of Hong Kong Airport.  This was a time shortly before you were about to board a flight to Australia.

3.  The officers intercepted you, and you were subjected to a body search.

4.  Each of you was found to have eight plastic bags containing a powder which contained methylephedrine on you.  The manner in which the bags of powder were concealed on each of you was the same.  Six bags were tightly wrapped around your legs with bandages, and two bags were concealed inside your shoes.

5.  The weight of the powder found on you, Cheung Hoi-sang, was 3.85 kilogrammes.

6.  That found on you, Tam Luk-yi, was 3.27 kilogrammes.

7.  You were both arrested.

8.  You, Tam Luk-yi, immediately told the customs officers that you had been told that the powder would be used to manufacture dangerous drugs.

9.  Later on that day, you were both interviewed and that interview was recorded.

10.  The account that you gave the interviewing officers was broadly the same.  You had been approached by someone and offered a reward for carrying the powder to Australia.

11.  You, Cheung Hoi-sang, say you were offered 50 to

12.  You, Tam Luk-yi, say you were offered $20,000.

13.  Both of you agreed to the proposition and were taken together to a travel agency in Mong Kok where you were booked on a tour to Australia.

14.  The following month, you travelled to the Mainland, where in a hotel room, the powder was strapped to your bodies.  Each of you was made aware that the powder could be used for the manufacture of dangerous drugs.

15.  Clearly, by your pleas, you have accepted that you were aware that that was the purpose of taking the drugs to Australia.

16.  You then crossed the border and went directly to Hong Kong Airport in order to catch the flight to Australia.  It was at the airport that you were intercepted.

17.  Methylephedrine is not in itself a dangerous drug, but is a precursor chemical for the manufacture of N,N-DMA, which is a dangerous drug under the Dangerous Drugs Ordinance.

18.  The methylephedrine found in the powder carried by you, Cheung Hoi-sang, could have been used to produce up to

19.  The methylephedrine found in the powder found on you, Tam Luk-yi, could have been used to manufacture up to

20.  The offence to which you pleaded guilty under section 40(1)(c) of the Dangerous Drugs Ordinance is not one in respect of which the appeal courts in Hong Kong have provided specific sentencing guidelines or recommended tariffs.

21.  The courts have, however, commented that sentences for manufacturing dangerous drugs and doing acts preparatory to manufacturing dangerous drugs should not be very much different.

22.  This court must, however, bear in mind that the maximum term of imprisonment for an offence under section 40(1)(c) is 15 years’ imprisonment, whereas the maximum term of imprisonment for manufacturing a dangerous drug is life imprisonment.

23.  In my view, the appropriate starting point in the circumstances of this case, in both your cases, is 5 years’ imprisonment.

24.  You, Cheung Hoi-sang, had one previous conviction which was shortly before you committed this offence, and for that offence, you were fined.  It was unrelated to dangerous drugs and I disregard it.

25.  I am prepared to accept that it was the debts that you had incurred as a result of losses on the stock market and the pressure you were under to repay those debts that tempted you to become involved with this offence.

26.  You were, however, 25 years old at the time of the offence, and would have realised the gravity of what you were doing.  You would have realised that very serious consequences would follow if you were caught.

27.  I bear in mind the letter that I have been handed from you, in which you expressed your regret for what you have done.  I also bear in mind the letter from your pastor.

28.  The only substantial mitigation, however, in your case, is your plea of guilty, for which you are entitled to the usual discount of one-third.

29.  So the sentence I pass on the 1st charge against you, Cheung Hoi-sang, is 3 years 4 months’ imprisonment.

30.  You, Tam Luk-yi, were a younger man than the

31.  You have a number of previous convictions, but none of them involve dangerous drugs.

32.  I bear in mind that you did not have the benefit of having your own parents bring you up.  Maybe if you had, and had been subject to the discipline and guidance from them, you would have avoided the several brushes with the law that you have had.

33.  It is apparent, however, from the number of times that probation orders have either been imposed on you or extended by the courts, that the courts have been anxious to give you the opportunity to lead a law-abiding life with the assistance of a probation officer.

34.  Unfortunately, you have not taken advantage of the opportunities that have been given you on those occasions.

35.  The only real mitigation in your case is also your plea of guilty, and for that you are entitled to the usual discount of one-third.

36.  I sentence you also to 3 years 4 months’ imprisonment.