HKSAR v. LOW XIN-YI

HCCC 401/2018

[2020] HKCFI 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 401 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The 1st and 2nd defendant pleaded guilty to one count of trafficking in a dangerous drug. They pleaded guilty at Eastern Magistracy and agree the Summary of Facts. They were committed to the Court of First Instance for sentence on 17 December 2019.

They both pleaded guilty to a joint charge of unlawfully trafficking in a dangerous drug, namely 1,391 grammes of a mixture containing 1,154 grammes of heroin hydrochloride on 11 March 2018 at Customs Arrival Hall A of Passenger Terminal 1, the Hong Kong International Airport. They had travelled together under the same booking from Kuala Lumpur, Malaysia to Hong Kong on that day.

They were selected by a customs officer for Customs clearance. There was nothing illicit in their baggage, however there was a body search and customs officers found packets of suspected heroin concealed at the bottom of shoes worn by both defendants. They were arrested and cautioned.

The 1st defendant, who was 16 at the time of her arrest, said under caution she did not know what the white powder was found in her shoes and she had bought the shoes the day before. Under caution, the 2nd defendant said he knew that the powder was “K powder”, a type of dangerous drug and he was promised 2,000 Malaysian ringgits as a reward for bringing it to Hong Kong. He said he would be contacted via WeChat when he arrived and given further instructions. He consented to assisting customs officers to conduct a controlled delivery operation.

After what the 2nd defendant said, the 1st defendant was questioned again under caution and she said she was in Hong Kong as a tourist and had no knowledge of the heroin concealed in her shoes. Her friend in Malaysia had bought her a pair of shoes to wear and there was no plan for her to pass the shoes on to anybody else. Since she said there would be no delivery now that she had arrived in Hong Kong, a controlled delivery operation with her assistance was futile.

Since the 2nd defendant agreed to assist, his mobile phone was left on with internet connection. There was a wait for any further instructions forthcoming. There were several incoming messages and telephone calls to his phone, but he told the customs officers that they were not related to this case. They were not answered or replied to. Ultimately, there was no controlled delivery operation as nobody called or messaged the 2nd defendant with instructions regarding those drugs.

Later, there were video recorded interviews conducted and under caution the 1st defendant admitted she was offered a free holiday in Hong Kong the day before she flew by a man called ‘the Boss’, who had approached her in a shopping mall in Kuala Lumpur. She had met the 2nd defendant a week earlier. He, too, arrived at the shopping mall and met the Boss. The Boss gave them both airline tickets to travel to Hong Kong. She did not know why he gave them free tickets nor did she ask.

The Boss told her she would be given a pair of shoes that she had to wear to Hong Kong. She was not told anything else. She found it a bit strange, but accepted the offer. She did not discuss this offer with anybody else. She said the Boss was Chinese and between 20 and 30 years old. They were both then given shoes at a bus stop in Kuala Lumpur and put them on immediately. The Boss gave them 2,000 Malaysian ringgits each, which she assumed was for expenses whilst in Hong Kong. She continued to deny all knowledge of the drugs in her shoes.

Under caution in a video recorded interview the 2nd defendant also elaborated. He frankly admitted he was offered 18,000 Malaysian ringgits to bring dangerous drugs to Hong Kong. He met the Boss, who was Chinese and was between 20 to 30 years old. They communicated via WeChat.

He and the 1st defendant were asked to go to a hotel in Kuala Lumpur where they spent the night and on the day of their flight they were asked to go to another hotel to collect shoes that were stuffed with heroin. He and the 1st defendant were give the shoes at the same time in the same place. They were also given 1,000 Malaysian ringgits each and their flight details.

He was told he would be given further instructions via WeChat after he arrived in Hong Kong. He said those people that attempted him during the controlled delivery operation via WeChat were not related to the drugs.

It was estimated that the retail value of that amount of heroin at the time of the offence was just over HK$1 million. Both defendants now admit they knew they were unlawfully trafficking in the dangerous drugs seized from their shoes.

1st defendant

The 1st defendant is a Malaysian Chinese born in Malaysia. She is now 18 years old, but was 16 at the time of the offence. She is single and lives with her parents in a village in Malaysia and before she came to Hong Kong, she was a Form 5 student and a part-time waitress. She has no previous criminal convictions in Hong Kong or elsewhere.

I have heard full mitigation and read the many mitigation letters from family, teachers, Christian pastors who have cared for her whilst in remand and Father Wotherspoon. All portray her as naïve, immature, innocent and manipulated. She was essentially conned by a so-called friend called Caleb to come to Hong Kong with him for free. He did not go eventually, but she felt she herself had to go through with the trip and came with the 2nd defendant.

Father Wotherspoon has written a letter and attaches the reports of investigative journalists who have exposed drug trafficking syndicates in Malaysia that target Malaysian couriers or mules. The 1st defendant was interviewed by these journalists as were her parents. Those interviews and reports have reached a wide audience. Father Wotherspoon is sure this has led to a stem in the flow of Malaysian drug traffickers or drug couriers coming to Hong Kong this year.

2nd defendant

The 2nd defendant is also a Malaysian Chinese born in Malaysia. He was 19 at the time of the offence and now 20. He is single and lives with his parents. He does have siblings in Malaysia. He has finished secondary school and at the time of his arrest was a technician earning 1,800 Malaysian ringgits per month. He has previous criminal convictions in Hong Kong.

I have heard further mitigation. I have heard that his mother needed an operation and the family needed money. He was tempted by the offer of just under 20,000 Malaysian ringgits to bring drugs into Hong Kong. I have read many letters from his family, from himself and Father Wotherspoon. Father Wotherspoon tells of this defendant’s assistance to Malaysian authorities and information he gave Father Wotherspoon himself.

Father Wotherspoon has personally gone to Malaysia several times to get the message across to potential drug mules in Malaysia about these defendants and other defendants’ life-changing mistakes that they have made.

I will take into account their assistance to Father Wotherspoon.

Both defence counsel have said all they can say on behalf of the defendants. Their best mitigation is their plea of guilty at the earliest opportunity. Both were young when this offence was committed, especially the 1st defendant, only 16.

Sentencing for both has been adjourned on several occasions to await any progress as a result of the information that they have given the Malaysian police and authorities about those drug traffickers in Kuala Lumpur. Nothing has come to fruition yet.

Sentencing guidelines

Trafficking in a dangerous drug in Hong Kong is a serious offence. On conviction on indictment a person is liable to a fine of $5 million and imprisonment for life. The authority of The Queen v Lau Tak Ming and others [1992] HKLR 370 sets out the Court of Appeal guidelines for trafficking heroin. However, that authority does not cover such a large quantity of heroin as in this case.

The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of narcotics. The Court of Appeal has decided that where between 600 and 1,200 grammes is trafficked, the starting point should be between 20 to 23 years’ imprisonment.

Here, mathematically speaking, 1,154 grammes of heroin should attract a starting point of 22 years and 9 months. It is well established that the sentencing starting point for the offence of trafficking in the absence of any good reason to the contrary is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach. And that the mere fact defendants were only drug mules or couriers is not a good reason for departing from that mathematical approach. I have referred myself to HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 for that principle.

In addition, the offence is aggravated by the presence of an international element in that the heroin was imported by both defendants into Hong Kong from Malaysia. According to the broad guideline laid down in the Court of Appeal in HKSAR v Chung Ping Kun [2014] 6 HKC 106, for the presence of an international element an offence for trafficking in over 1,000 grammes of heroin should be enhanced by not less than 2 years. The above guideline is not a straitjacket and I consider the enhancement for the international element in the present case should be 2 years.

Assistance from the 1st and 2nd defendant

Miss Crebbin, for the 1st defendant, submits there has been a genuine attempt to provide information to the Malaysian police to catch the masterminds, but it has not yet borne any fruit.

Counsel for the 2nd defendant, Mr Ng, submits that there was the mitigating factor of a genuine offer of assistance in the form of a controlled delivery operation after arrest and then a non-prejudicial statement. I have taken into account the authority of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017 where assistance to authorities is encouraged. In particular, I quote from paragraph 48:

“This sentencing range allows a court to award a discount to a defendant who has made a genuine attempt to assist the authorities, his assistance has been helpful but, for one reason or another, it is not assessed to be of particularly great value. One of the most commonly encountered forms of assistance found within this range is participation in an unsuccessful controlled delivery.”

The Court of Appeal continue at paragraph 49:

“This particular form of assistance is frequently encountered in drug courier cases and the reason it is unsuccessful is because the recipient of the drugs does not attend the pre-arranged meeting place, perhaps because his suspicions have been aroused by delay in the courier contacting him or for some other reason. The assistance rendered by the co-operating defendant is, therefore, both limited and unfruitful. Notwithstanding that the assistance possesses these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”

In HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal declined to specify a discount which might be given for an unsuccessful controlled delivery. They go on to say:

“...neither a straitjacket approach nor the application of a percentage discount range is desirable, because the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases.”

Miss Crebbin, for the 1st defendant, has stressed those factors referred to and submit they are worthy of consideration in this defendant, the 1st defendant’s case.

In this case, the 2nd defendant’s assistance was confined to his participation in a failed controlled delivery operation and his subsequent non-prejudicial statement. The operation was not successful, this makes his assistance somewhat limited. The same can be said to apply to the information provided by the 1st defendant.

There was some element of risk to the 1st defendant and family by doing what they did, I accept that. I will not ignore their attempts to assist; in fact, as it has been said by the Court of Appeal, it should be encouraged. I will therefore consider a higher discount to factor in their genuine attempts to assist the authorities and give information of those drug traffickers who recruited them in Malaysia. I will also consider the fact the 1st defendant was only 16 at the time of the offence. And even taking into account a discount of one-third for her plea, she is facing a sentence that is as long as she had been alive when she was arrested.

Miss Crebbin has not urged me to consider her age as a mitigating factor, quite rightly so because the Court of Appeal has made it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged, or the financially impoverished who are recruited to become drug traffickers or drug couriers. This is especially so when there is an international element to the trafficking and that has been made clear in HKSAR v Abdallah Anwar Abbas as well HKSAR v Bayanmunkh [2012] 2 HKC 233.

However, I cannot ignore that the 1st defendant was a student and with that young age, maturity was yet to come. An offer of a free holiday was tempting. Even if she initially did not know what was in the shoes, she became suspicious yet she turned a blind eye and asked no questions. Ultimately, she felt she could not say no to getting on that plane without her so-called friend, Caleb.

It is perfectly clear that sentencing courts should not be sympathetic to those categories of couriers identified by the Court of Appeal. All it would do is encourage more recruitment of the same to traffic drugs. Any discount for extreme youth is normally only available generally to those 15 years old or younger. However, in this case any sympathy I have will still result in a very long sentence for a very young person.

Sentencing is a balancing exercise and to sentence to a term of imprisonment that is nearly as long as she is old would be crushing any future she can still aspire to. I am going to take into account in this case that the 1st defendant was 16, immature, naïve, manipulated and led astray. Rehabilitation is a factor I can emphasis when passing sentence on her. I will consider a discount for this factor. It warrants a further reduction in sentence to take into account rehabilitation.

Can I ask both defendants to stand up.

I have taken into account all mitigation put forward, the facts of this case, your pleas and your assistance given in various forms. I do find a starting point of 22 years for that quantity of heroin appropriate. I do add 2 years to that starting point to reflect the international element. That is, a starting point of 24 years’ imprisonment.

You would be entitled to a discount of one-third for your plea. I am going to increase that discount to about 40 per cent to reflect the assistance given. That reduces the starting point of 24 years to 14 years and 5 months. I am reducing that sentence by a further 5 months to reflect the assistance to Father Wotherspoon’s campaign. According to the Court of Appeal it should only be 3 months, but the level of assistance appears to be more than the usual assistance given to Father Wotherspoon by other international couriers. This reduces the sentence to one of 14 years’ imprisonment.

As far as the 2nd defendant is concerned, I see no other mitigating factors that allow me to reduce that sentence any further. I will say here I do not accept the mitigation of an honest, but mistaken belief of the type of drugs involved. I do not find that mitigation succeeds here. Therefore, there will be no further discount. The 2nd defendant is sentenced to 14 years’ imprisonment.

As far as the 1st defendant is concerned, I have made reference to her age, I find I can reduce her sentence by a further 18 months. I reduce her sentence by 18 months; reducing it to one of 12 years and 6 months.