HKSAR v. WONG CHOK KWONG

HCCC 85/2018

[2018] HKCFI 2662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 85 OF 2018

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

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

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

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

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

COURT:

The 71 year old defendant was committed to this court for sentence from Eastern Magistracy pursuant to section 81B(2) of Chapter 227.

The facts of the case are straightforward. The defendant was stopped by Customs officers as he entered Hong Kong at the Lo Wu Control Point Arrival Hall. He was searched and a packet containing 695 grammes of a mixture containing 379 grammes of heroin was found in his underpants. The defendant was arrested and cautioned. He admitted that he had been asked to smuggle ‘white powder’ into Hong Kong and said he was to be rewarded with $5,000. He subsequently agreed to participate in a controlled delivery operation which ultimately proved unsuccessful.

The starting point of sentence I take is 14 years’ imprisonment. I do not propose in the circumstances of this case to increase that starting point because of any international element.

The primary mitigation relied upon is the defendant’s early plea of guilty. For that, he gets full credit; that is, the 33 per cent reduction to the starting point of sentence. Mr Grounds asked that, additionally, the defendant get credit for his mature age. He is nearly 71 years of age.

There are a number of authorities concerning the approach taken to a mature aged defendant in sentencing. Some authorities suggest that old age, unless, and I quote, “extremely advanced”, is generally not a mitigating factor. See HKSAR v Chow Chi Ming HKMA 1247/2006. Some authorities observed that a slight discount might be appropriate if the defendant is of “considerable age”. See R v Chan Tak Sang [1987] HKLR 1203.

But that approach can be contrasted with R v Chan Chun Yip CACC 513/1996 where an 88 year old heroin trafficker, who had been sentenced to imprisonment for 15 years, was refused any discount for his age because “leniency would encourage syndicates to recruit aged persons”. Other more recent cases have adopted the same approach. In my view, the matter is one of common sense, and will take into account the nature and seriousness of the crime and the circumstances of the defendant as was said recently by the English Court of Appeal in R v Clarke and R v Cooper [2017] 2 Cr App R(s), that although an offender’s life expectancy, age, health and prospect of dying in prison were factors legitimately to be taken into account, they had to be balanced against the gravity of the offending including the harm done to the victims and the public interest in seeing adequate punishment for very serious crimes.

I also bear in mind what was said by Silke VP in The Queen v Tsui Lai Ying [1987] HKLR 857 that, and I quote:

“Courts tend to lean against, but only in special circumstances, sentences on persons of equivalent age which may lead to the possibility of death in the course of it being served.”

In my view, any further reduction in sentence for old age, once a proper starting point of sentence has been arrived at, and any other factors of mitigation appropriate to the offence have already been taken into account, should only occur in circumstances where the serving of the appropriate sentence would be tantamount to an exceptional hardship. For example, where the aged defendant is unlikely to survive the sentence or where his deteriorating health renders a long term of imprisonment an exceptional hardship. Any reduction in sentence in those circumstances would be, in my view, better categorised as an act of mercy rather than the application of principle.

In this case, there is no exceptional hardship. From what I have been told, the defendant has no unusual health issues other than those suffered commonly by a person of his age. In any event, the sentence I impose, taking into account the realities of possible earlier release for a person of the defendant’s age leaves him with the realistic expectation of a resumption of his life with his family. There can be no further reduction of sentence on this basis.

A final matter of mitigation relied upon by Mr Grounds is the defendant’s agreement to participate in a controlled delivery of the drugs to a person ‘Ah Boy’ who the defendant, through his counsel, asserts was to meet him at a location in Kowloon. Of concern to me was that the defendant had told Customs officers at the time of his arrest that his reason for committing the offence was monetary. He was to be paid HK$5,000, yet before me through Mr Grounds, that was said to be false and that the real reason was that he had been blackmailed into committing the offence by way of being threatened that his wife would be told of his infidelity with another woman if he did not deliver the drugs.

The defendant, as is his right, declined to participate in a video-recorded interview and for reasons explained by Mr Grounds, declined to give evidence. There was therefore very little before me to determine whether the defendant’s version of events which led to the Customs officers proposing he participate in a controlled drop was genuine. Mr Chau for the prosecution helpfully informed the court that the officers involved in that operation thought the defendant’s information was possibly genuine.

There is one other matter. I take into account that the defendant was informed before the operation that he would receive no sentencing benefit from his participation. While this advice was inaccurate, the defendant’s continued participation nevertheless suggests he did not participate in the controlled delivery operation as a ploy so as to have his sentence reduced.

Accordingly, I am prepared to give the defendant the benefit of the doubt in this regard and allow him a further small discount so that his total discount, including that for his plea of guilty, will be 37 per cent.

That results in a final sentence of 8 years and 9 months’ imprisonment.