HKSAR v. LEE HIN HE

HCCC 371/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 371 OF 2015

-----------------

------------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: I have to sentence you for trafficking in a dangerous drug following your plea of guilty. The drug in question was cocaine and the amount in question was 1.692 kilogrammes.

Your involvement came about because you allowed your address to be used as the destination for a parcel from aboard. The parcel came from Brazil and the cocaine was hidden in capsules which were in bottles dressed up to look like vitamins, and that was how the contents were described on the package. A random check by Customs found out the true contents and a controlled delivery was made on 14 April of last year to your Tseung Kwan O address where you lived with your mother.

You then cooperated with the Customs officers following your arrest, and as a result of that telephone calls were made which resulted in somebody else, who was earlier the 2nd defendant in these proceedings, being arrested at the premises when she came to collect the parcel.

I am minded to accept the mitigation put forward as to how you came to be involved in this matter, which is that you were in debt and that your creditor was threatening the usual sort of moneylender remedies of red paint on your house to enforce the debt, and that he put you under pressure. He then gave you a way out, which was to allow your address to be used for the receipt of the parcel.

I doubt whether you knew the quantity that would have been involved in such a delivery, yet it is that factor of weight which, in our jurisdiction, plays the lion’s share in deciding your fate of how many years imprisonment you should face, because you would have been told sentencing in drug trafficking here depends upon guidelines which are in turn based upon the weight and nature of the drug.

Your case falls into the bracket of 1,200 to 4,000 grammes, attracting after trial a sentence of imprisonment from 23 to 26 years. I am also bound to consider enhancing that sentence because there is an international element involved in this crime.

Let me start by choosing a starting point. You are at the bottom end of that bracket, so the starting point would be 23 or 23½ years. These are guidelines and not straightjackets, and I can give some weight to the role that you played in the crime, and I judge on what is known to me that your role was at the very bottom.

If I had before me in the dock now to sentence the man who set up this, who financed it, whose idea it was, and who organised the couriers and the pickup and the like, I imagine he would face a sentence of probably no more than 25 or 26 years. Bearing that in mind, if I started at 23 or 23½ years, I would find that to be too close to his role. I judge in this case it is right and fair that the role you played should diminish the starting point somewhat.

I am conscious that judges at First Instance should not do violence to the guidelines. That would be wrong. So what I aim to do, whether I achieve it or not I do not know, is to stay within the spirit of those guidelines but give effect to doing justice in the individual case when it comes to role. So what I shall do is take a starting point of 22 years. You know you earn a one-third discount for your plea of guilty, and that can be increased in your case because of the help you gave to the Customs.

Counsel has referred me to the case of Z, which was in the Court of Final Appeal, FACC 9/2006, which spoke of discounts, including the plea of guilty discount, of 40 to 45 per cent. I know both parties have seen it, and I have read it though we have not discussed it today, a case recently before the Court of Appeal which was CACC 78/2015, which was HKSAR v Darlington Nkwo. The guidance from the Court of Appeal there was that circumstances varied so greatly that there was no uniform guideline approach to the size of the discount for providing help in the course of investigation like this, and that it depended very much from the individual facts.

I judge here that the help you gave was truly significant. It led to the next person up the chain, and that could potentially have led further. Without your cooperation there would have been no 2nd defendant, and the fact that the 2nd defendant was acquitted reflects less on the quality of your help than on the quality her defence, which was that she thought she was collecting watches, or the like.

You had no prepared defence at your fingertips. I am not suggesting that hers was a false defence in any way, the jury found the prosecution had not proved the case against her, and I act on that basis. If you had been there with a prepared defence, you too might have avoided the trouble you are now in.

You had not got one and that rather sits well with what I am told about you as a person from letters from your family, is that you are an unsophisticated young man. I have read the letters that were sent upon your behalf and they, along with your clear record, paint a picture of someone amenable to exploitation in the way I have described and not someone who, other than this matter, was otherwise associated with crime. I bear all that in mind when I consider the size of the overall sentence.

For the cooperation, in the circumstances, I shall increase the discount from that which you are owed for the plea of guilty, to one of 45 per cent.

We finally come to the question of enhancement for the international element.

When those who speak of 2 years for enhancement for an international element, I would not have thought they had in mind cases as simple as yours where your role was, in fact, entirely domestic.

A picture created by the phrase “international drug trafficking” is one that would not readily, in my view, fit with your involvement in this crime, although there is an obvious international element as the parcel came from Brazil. Not only that, if this parcel had been transferred through D2 to someone else and someone had taken the packet off and they had been caught with it, and the facts were as simple as that, they probably would not have been facing a 2 year enhancement. Yet we know that coca leaf does not grow in Hong Kong, and it must have come across the border.

Given the size of the sentence, in any event, and how I perceive your role in it, I am not minded to pass the full extent of that 2 year enhancement and I shall, having considered it, limit that to an enhancement of 9 months. That is a deliberate reduction and one I thought about quite hard.

The result of all of that, and I apologise for the length of time I have taken in sentencing you, is that with the discount of 45 per cent, on a starting point of 22 years plus an enhancement of 9 months, that would be a sentence of 12½ years.

I hope I will be forgiven for repeating, that is, consciously, a sentence that is lower than you might otherwise have expected if you applied the guidelines rigidly. But I repeat, they are not straightjackets and I am allowed some discretion within them, and what I have tried to do is tailor that discretion so that it does not, in the end, do violence to the guidelines and can live within them.