HKSAR v. XIAO CHUNMING

DCCC 182/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 182 OF 2014

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of importing a controlled chemical not under and in accordance with a licence, contrary to section 3(a) and 15(1)(a) of the Control of Chemicals Ordinance, Cap 145. Particulars of the offence are that on 27 September 2013, the defendant imported into Hong Kong without a licence a substance specified in Schedule 2 of the Control of Chemicals Ordinance, namely, 43.42 kilograms of tablets and 12 tablets containing 10.21 kilograms of pseudoephedrine.

2. The facts of this case are straightforward.  On 27 September last year, the defendant arrived in Hong Kong at Chek Lap Kok Airport from Cairo, Egypt.  His baggage was checked at Customs.  A customs officer found tablets in all three pieces of his luggage, and as I have said, the tablets weighed in total over 43 kilograms which is very heavy.  So I imagine that is why they were split into at least two bags.

3. The value of the chemicals was HK$22,000.

4. The reason this chemical is controlled is because it is a necessary ingredient in the manufacturing of “Ice”, methamphetamine hydrochloride.  “Ice” is a very dangerous drug with devastating effects to users.  It is a drug no one wants to see readily available in Hong Kong.  The facts show that this much pseudoephedrine can produce about 7 kilograms of “Ice”. 

5. The defendant, when he was arrested, said under caution that he was helping a Greek man called Mr Young to deliver these tablets to Hong Kong.  He thought the tablets were medication for throat problems.

6. In mitigation, counsel has elaborated and said the defendant travelled to Egypt to help his cousin in his telecommunication business.  He could earn RMB2,000 for a week’s work.  Between July and September last year, he travelled to and from China and Egypt on many occasions to work.  It was through his cousin that he met this Mr Young and agreed to bring these tablets back to Hong Kong for him.  He said he would only get a small financial reward but did not say how much that reward was. The authorities attempted to interview him further but under caution he remained silent and elaborated no further.

7. The penalty for this charge is a maximum financial penalty of HK$1 million and 15 years’ imprisonment.  This penalty reflects the seriousness of this offence.  It is precisely this scenario that legislation seeks to prevent and deter.  “Ice” cannot be manufactured without this chemical.  Hence, there is tight control over its importation, and there is a heavy penalty in the event it is smuggled into Hong Kong.

8. Defence counsel has asked me to consider several factors, including the fact the chemical was in tablet form and not a solid. He asked me to consider the fact there is no evidence it would have been used for manufacturing “Ice” and not for veterinary or medical purposes.

9. Yes, I accept that submission but the fact is it could have been used to make “Ice”, and that risk is high.  The fact possibly up to 7 kilograms of “Ice” could have been manufactured is very serious.  Hong Kong cannot be used as a port to receive such chemicals capable of making this amount of “Ice”.  A strong message must be sent out to deter this chemical being smuggled into Hong Kong.

10. I have been referred to two District Court cases where the defendant has faced the same charge and imported the same chemical: HKSAR v Cao Yuhui & Others DCCC 823 of 2013 which was also referred to in DCCC 917 of 2013.  In that first case, three men also smuggled into Hong Kong from Egypt tablets containing pseudoephedrine.  The three men were carrying between 6.34 and 7.31 kilograms.  In that case, the starting point was 3 years’ imprisonment for each defendant.  All defendants pleaded guilty.

11. In the second case I referred to, the defendant smuggled again from Egypt 5.86 kilograms of pseudoephedrine in tablet form.  In that case, a 4-and-a-half-year starting point was deemed appropriate.  That defendant pleaded guilty.

12. I have referred myself to these two cases dealt with by my learned brother and sister several months ago. 

13. In this case, defendant’s best mitigation is his plea of guilty.  He is 26 years old, has a previous criminal conviction in Hong Kong but it is not a similar offence.  He is in fact not a Hong Kong resident but a PRC citizen.  He is married and has two children.

14. I received a letter of mitigation from the defendant himself.  He expresses his remorse and asks for leniency.

15. I have considered the facts of this case, the quantity of this chemical brought into Hong Kong, mitigation and explanation put forward as well as your plea.  Having carefully considered the above factors, I find a starting point of 4 years and 6 months appropriate.  You have pleaded guilty.  You are entitled to a discount of one‑third from that starting point.

16. Accordingly, you are sentenced to 3 years’ imprisonment for this offence.