HKSAR v. LIM KEAT SENG

HCCC 365/2019

[2020] HKCFI 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 365 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs before a magistrate and was committed on 28 October 2019 to the Court of First Instance for sentence.

SUMMARY OF FACTS

2.  The defendant, a Malaysian national, flew to Hong Kong from Kuala Lumpur on 9 July 2018.  He was found unconscious in his seat when the flight landed at around 5:55pm.

3.  The defendant was taken to the hospital and, between 9 and 10 July, doctors removed the following items from the defendant’s stomach and rectum while he was still in a coma:

(a)  70 packets containing a total of 270.08 grammes of a mixture containing 226.16 grammes of heroin hydrochloride; and

(b)  torn plastic wrappings containing traces of monoacetylmorphine (an ester of morphine), which was likely generated by metabolism of heroin by the defendant’s body.

4.  The total value of the heroin is $238,210.56.

5.  The defendant regained consciousness around 16 July.

PREVIOUS CONVICTIONS

6.  The defendant has no previous convictions in Hong Kong.

MITIGATION

7.  The defendant is a Malaysian national.  He was born in May 1997 and is soon to be 23 years old.  He is second of four children in the family.  His father works as a chef and mother is a housewife.  The defendant’s 25-year-old elder sister and 18-year-old younger brother had just finished their studies and have started working.  Their 10-year-old younger sister is still studying.

8.  The defendant started working to support the family when he was at school, earning about RM500 to 800.  He had worked in a bicycle shop, in a kitchen and a steel mill.  After his graduation in 2016, he became a kitchen apprentice in a restaurant in the city, earning about MYR1,500 to 1,800 per month.

9.  The defendant explained that he committed the present offence in order to help his father to repay his MYR200,000 gambling debt to local loan sharks in Malaysia.  Their family had been subjected to persistent harassment by local triads chasing for repayment.

10.  The defendant, however, does not deny that there was also an element of greed in his decision to ask others for quick ways to earn money, leading to the commission of the offence.

11.  The defendant said he was told to hide the drugs inside his body and he did so without finding out too much about the possible effects.  Nor did he realise the seriousness of drug trafficking, even up to the moment of his arrest.  It was only after he had regained his consciousness and heard the doctors explained to him how dangerous it is to hide the drugs inside one’s body that he realised that he could have lost his life.

12.  During his detention in the hospital, the defendant said he felt remorseful and helpless and missed his family very much.  After his transfer to Lai Chi Kok Reception Centre, he participated in religious activities and has since learned that what he did was wrong and that he must take responsibility for his mistake and accept the punishment.  He is grateful for this religious experience, as well as the medical staff who had been taking care of him.

13.  The defendant understands that he will be facing a long jail term.  It is his plan to make good use of the time and learn some skills while imprisoned, so that he will be properly prepared when it comes time to rejoin society.

14.  The defendant is sad that his family suffers together with him.  He wishes to share his religion with them in future, and seeks leniency from the court based on his personal circumstances and his remorse.

15.  Father Wotherspoon wrote to inform the court that the defendant and his family had actively participated in his anti-drug campaign to stop people in Malaysia from trafficking drugs to Hong Kong.

CONSIDERATIONS

16.  The maximum sentence for trafficking in dangerous drugs is a fine of $5 million and life imprisonment.

17.  The Court of Appeal has laid down clear guidelines for sentencing trafficking cases.  The applicable guidelines for trafficking in heroin hydrochloride are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370.  For narcotic quantities of between 200 and 400 grammes, the proper starting point is that of 12 to 15 years’ imprisonment.

18.  An arithmetical application of the said guidelines would lead to a starting point of 149 months for the 226.16 grammes of heroin involved in the present case.  This is the starting point I adopt.

AGGRAVATING FACTOR

International element

19.  The defendant brought in a substantial quantity of narcotics from abroad.  According to the decision in HKSAR v Abdallah [2009] 2 HKLRD 437, this international element is an aggravating feature that warrants an enhancement of sentence.

20.  In the case of HKSAR v Chung Ping Kun CACC 85/2014, the Court of Appeal laid down the following guidelines for enhancement where the trafficking of dangerous drugs involved an international element:

“As a broad guideline for drugs of this kind[1] 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”

21.  Bearing in mind the said guidelines, I will enhance the defendant’s sentence by six months, leading to a notional starting point of 155 months.

MITIGATING FACTOR

22.  Although I do have sympathy towards the defendant’s personal circumstances, it is trite law that financial pressure is not a reason to grant a discount in sentencing.

23.  In the case of R v Kwok Yau Fat, CACC 537/1996, the applicant, who was physically handicapped after suffering injuries in an accident, said in mitigation that the reason he was bringing unlawful entrants to Hong Kong, which was the offence he was being sentenced for, was to earn money for a second operation.

24.  The court recognised the applicant’s physical difficulties, but found that “these are not matters to which we can properly give weight when assessing the propriety of a sentence.  It was a proper one upon the facts before the judge and nothing has been said that would allow us to interfere therewith.”

25.  In the case of HKSAR v Somphaksorn Lamyai and Another, CACC 88/2008, two Thai nationals pleaded guilty to trafficking in heroin.  Both applicants referred to their unfortunate personal circumstances in mitigation.  The second applicant’s husband had for long been paralysed as a result of an attack upon him leading to dire financial straits.  In the case of the first applicant, her difficult family circumstances led to a need for money.

26.  In dismissing their applications for leave to appeal against sentence, the Court of Appeal said this:

“17. The courts have time and again steeled themselves in drug trafficking cases against mitigation based on financial need, not only because it opens those in financial need to particular pressure by drug dealers, but also because most people in financial need resist that temptation and must by stern sentencing policy be discouraged from succumbing to it.”

27.  In alignment with the principles expounded in the above and other cases, I find that there is to be no discount granted to the defendant based on his personal circumstances and the possibility that he might have committed the present offence in order to be able to assist his father in the repayment of his gambling debt.

SENTENCE AFTER PLEA

28.  The defendant is granted the full one-third discount for his timely plea of guilty, bringing the sentence to 103 months and 9 days’ imprisonment (or 8 years 7 months and 9 days).

FATHER WOTHERSPOON

29.  I accept that the defendant and his family had assisted in Father Wotherspoon’s campaign and I grant him a token discount of three months on top of the one-third discount, as suggested by the Court of Appeal in the case of HKSAR v Kilima Abubakar Abbas, CACC 143/2016, 18 September 2018, unreported, [2018] HKCA 602.

30.  The final sentence is, therefore, 100 months and 9 days’ imprisonment.