HKSAR v. CAO YUHUI AND OTHERS

DCCC 823/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 823 OF 2013

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REASONS FOR SENTENCE

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D1 to D3 each faces a charge of "Importing a controlled chemical not under and in accordance with a licence" (Charges 1 to 3 respectively). They pleaded guilty to the respective charges.

Summary of Facts

2.  On 27 March 2013, D1 to D3 travelled on the same flight from Cairo to Doha; and from Doha to Hong Kong.

3.  Upon arrival at Hong Kong, they were intercepted by customs officers for inspection almost at the same time when they passed through Arrival Hall A.

4.  D1's suitcase was found to contain 30 tinfoil/plastic bags which contained a total of 26.64 kilogrammes of tablets containing 6.34 kilogrammes of pseudoephedrine (collectively "E1"). This is Charge 1.

5.  D2's suitcase was found to contain 30 tinfoil/plastic bags which contained a total of 26.38 kilogrammes of tablets containing 7.31 kilogrammes of pseudoephedrine (collectively "E2").  This is Charge 2.

6.  D3's suitcase was found to contain 30 tinfoil/plastic bags which contained a total of 26.44 kilogrammes of tablets containing 6.99 kilogrammes of pseudoephedrine (collectively "E3"). This is Charge 3.

7.  E1, E2 and E3 were in similar packaging.  They were placed underneath a layer of teabag carton boxes in the respective suitcases of D1 to D3.  The carton boxes are of the same brand of teabags.

8.  Also, D1 to D3 were each found in his possession a packet of "Actifed" tablets with the words "pseudoephedrine hydrochloride" printed thereon (respectively "E1A" to "E3A").

9.  D1 to D3 could not produce any valid licence in relation to E1 to E3.  Under caution, D1 claimed that he raises pigs and E1 were "flu drugs" for feeding pigs.  D2 claimed that he bought E2 for RMB20,000 and the drugs were for feeding pigs and chickens for flu.  D3 claimed that E3 were for feeding chickens and he had bought about 1,200 packets of the drug in Egypt at the price of RMB0.3 per packet.

10.  Pseudoephedrine is specified in Schedule 2 of the Control of Chemicals Ordinance (Cap.145).  Government Chemist confirmed that E1A to E3A also contain pseudoephedrine.  Government Chemist opines that pseudoephedrine could be used as a precursor for the illicit manufacturing of methamphetamine hydrochloride (commonly known as "ICE").

Mitigation

11.  D1 is now 34 and has a clear record.  He is married with a son (aged 15).  He was educated up to Primary 5 and has been working in farms since.  He now runs his own farm raising pigs.

12.  D2 is now 30 and has a clear record.  He is married with 2 children (aged 4 and 1).  He was educated up to Primary 5.  He raises pigs for a living.

13.  D3 is now 40 and has a clear record.  He is divorced and has 2 sons (aged 19 and 17).  He was educated up to Primary 5.  He raises chickens for a living.

14.  Defence counsel Miss Lai submitted that once D1 to D3 were stopped at Hong Kong Customs, they each showed the box of "Actifed" (E1A to E3A) to the customs officers to explain the contents of E1 to E3.  Miss LAI stressed that D1 to D3 were heading back to the mainland; they were passing through Hong Kong in transit.  Miss LAI further submitted that D1 to D3 were travelling in Egypt and they found the flu drug selling at a price much cheaper than in China.  Miss LAI claimed that this particular drug is legal in both Egypt and China.  Regarding the teabag carton boxes, Miss LAI clarified that they contained real teabags and were not being used as a disguise.  It so happened that the defendants had placed the drugs underneath a layer of teabag carton boxes in their suitcases.

15.  Prosecuting counsel Mr. TSE handed up a case HKSAR v HO Ka Ming CACC 425/2009 (Chinese judgment) to assist the court in sentencing.  Miss LAI submitted that the facts in the present case are distinguishable from those in HO Ka Ming; and therefore, the court can adopt a starting point much lower than 6 years' imprisonment for D1 to D3.  I will deal with this issue in greater details in the subsequent paragraphs.

Sentence

16.  In HO Ka Ming, the applicant was found carrying with him about 2.7 kilogrammes of a solid containing pseudoephedrine, which was equivalent to about 1 kilogramme of pseudoephedrine hydrochloride.[1]  The substance was found in the applicant's waist guard and socks.  Government Chemist opined that such a quantity of pseudoephedrine could produce 0.5 to 0.75 kilogramme of ICE.

17.  In the present case, the quantities of pseudoephedrine involved are much larger than those in HO Ka Ming. On the other hand, E1 to E3 were all in tablet form, rendering them more likely for consumption by human or animals rather than for further processing into ICE.  Similar to HO Ka Ming, there is no evidence showing D1 to D3 knew that E1 to E3 could be used for manufacturing of ICE.  Furthermore, there is no evidence in the present case as to how much ICE could be produced from E1 to E3.

18.  I accept that other than the quantities of pseudoephedrine, the facts in the present case appear to be less serious than those in HO Ka Ming.  What I cannot overlook, however, is the potential risk of materials capable of being used in ICE-manufacturing passing through Hong Kong.  I will not speculate on the quantity of ICE which could be produced from E1 to E3, but their respective quantities, 6.34 kilogrammes, 7.31 kilogrammes, and 6.99 kilogrammes, are, in my opinion, large by any standard.

19.  The maximum sentence for each charge upon conviction on indictment is a fine of $1 million and imprisonment for 15 years.  This clearly reflects the Legislature's view on the seriousness of this offence.  Moreover, in HO Ka Ming, the Court of Appeal has made it clear that ICE will cause serious harm to the society.  In order to deter drug dealers using Hong Kong as a transportation hub to import and export dangerous drugs or materials capable of being used in manufacturing dangerous drugs, the court must send out a strong message to the general public that offenders of drug-related crimes will receive severe punishment.[2]

20.  The quantity of pseudoephedrine involved in each charge is more or less the same.  I will therefore adopt the same starting point for each charge.  Having considered all relevant factors, I consider a starting point of 3 years' imprisonment to be appropriate.   A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  D1 to D3 are respectively sentenced to 2 years' imprisonment for Charges 1 to 3.