HKSAR v. TSUI NAI KA, GARRICK

HCCC 170/2019

[2019] HKCFI 2895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 170 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This case concerned a conspiracy by Tsui Nai-ka Garrick, Lau Po-yan and an unknown person to traffic in cocaine. The offence period was between on or about 10 July 2017 and 6 August 2017. A total of 537 grammes of a solid containing 425 grammes of cocaine was imported into Hong Kong from Lima, Peru by an innocent agent controlled by the defendant.

The defendant pleaded guilty to the charge and admitted the facts pertaining to the offence. I convicted the defendant on his own plea and admission of the facts. The co‑conspirator, Lau Po-yan, particularized in the charge is the defendant in HCCC 169/2019. She faced an identical charge of conspiracy to traffic in a dangerous drug. She pleaded guilty to the charge before me today and was convicted.

The Facts

At about 10.50 hours on 5 August 2017, PW1, Ms Chan Choi-wa, aged 22, was intercepted at the Customs arrival hall of Hong Kong International Airport upon arrival from Lima, Peru via Amsterdam. Baggage examination was conducted. Found inside PW1’s green suitcase were 20 pieces of clothes, 5 pairs of shoes and 11 packets of sauce. A search revealed that a grey padded jacket had been re-seamed. When cut open, a white cloth was found concealed inside. A drug test was conducted for the white cloth which revealed a positive result for cocaine. The rest of the clothes and shoes were then cut and all were found concealed with a white cloth inside. A total of 93 pieces of cloth were found containing 537 grammes of a solid containing 425 grammes of cocaine.

PW1 was also found, inter alia, in possession of two sets of electronic air tickets, one in her own name and the other in the name of female Lie Fung-fong. She was also found to have three mobile phones.

Investigation revealed, inter alia, that PW1 was deceived into bringing the green suitcase containing dangerous drug back to Hong Kong. PW1 revealed, inter alia, that:

(a) In early July 2017, PW1’s friend, female Ng Yuen-ching (“Ng”) nicknamed “Chang”, told her that she had a friend who was looking for escorts to go on a trip to South Africa for seven days for a wage of $10,000. PW1 told Ng she was interested in the job.

(b) A few days later, the defendant called PW1 by telephone and confirmed with her the aforesaid job details. The defendant told PW1 that the work entailed escorting the bosses in South Africa to carry baggage and doing odd jobs. No sex would be involved. Other girls would be going on the same trip with her. PW1 agreed to take up the job.

(c) PW1 met the defendant at Lam Tin MTR Station and provided the defendant with photocopies of her identity card, passport and proof of address for him to purchase her air tickets and hotel room for the trip.

(d) On 11 July 2017, the defendant told PW1 that she would depart on the night of 12 July 2017 and arranged to meet her for a meal in Mongkok before going to the airport together.

(e) On 12 July 2017, as arranged they met in Mongkok. The defendant told PW1 that he had misread the date and the flight, and it should be at 12 noontime on 13 July 2017 and that another female would be going on the trip with her. The defendant arranged to meet her at the airport on 13 July to help her check-in for her flight and to brief her of the job details.

(f) At about 10 am on 13 July 2017, PW1 met the defendant at the airport. The defendant told PW1 that the other female going on the trip had stood him up and she was to go on the trip alone. At the airline counter, she was told by the counter staff that her trip from 13 to 17 July 2017 was too short and she would not be given a boarding pass without a reasonable explanation. The defendant spoke for PW1 and said that he was her elder cousin and the trip was a short one as PW1 was going there to attend a wedding ceremony of a relative. The airline staff requested for the address of the relative for the record. The defendant took PW1 to Café de Coral where he then went online with his mobile phone and found an address. The defendant then copied the address and gave it back to the airline staff who then issued PW1 with a boarding pass.

(g) The defendant gave to PW1 her boarding pass, hotel room reservation voucher, two mobile phones (one black and one white), the other female’s electronic air ticket and $3,000 as pocket money for her trip. The black mobile phone was for the boss’ helpers to contact her. The white mobile phone was for the other female but as she did not show up, the defendant told PW1 to play the other female’s role as well and on returning to Hong Kong, the defendant would pay PW1 more money.

(h) At around 11 am, the defendant told PW1 that it was time for her to cross the gate for boarding and it was only then that the defendant told PW1 that she was to bring a baggage back to Hong Kong for the boss. PW1 enquired with the defendant whether the baggage was safe. The defendant told PW1 that it would be clothes of the boss. If PW1 did not believe him, she could open the baggage to take a look. PW1 was also told to report via WhatsApp on her own phone to him upon arrival at each location and to inform him of whatever instructions anyone gave her. PW1 was also not to let anyone know that she also played the role of the other female.

(i) PW1 flew from Hong Kong to Amsterdam to Lima. On arrival in Lima, PW1 surfed the internet and realized that she was in Peru and not South Africa. PW1 contacted the defendant and had a row with him who explained that the amount of remuneration would remain the same although the destination had changed.

(j) After arriving in Lima, PW1 checked in at the hotel booked. PW1 was also contacted via WhatsApp on the black phone by people claiming to be the boss’ helpers. They all spoke in Cantonese to her. No boss showed up requiring escort. PW1 was told by the boss’ helpers that the boss had gone somewhere to attend to other business and the baggage had not arrived. PW1 was told to extend her stay and to get a new ticket. PW1 was originally set to fly out from Lima on 17 July 2017.

(k) PW1 disputed with the defendant over insufficient moneys and her stay in Lima was to be extended as she worried that if she did not return to Hong Kong as scheduled she would lose her job. The defendant promised to pay PW1 an additional sum of $10,000 when she returned to Hong Kong for extending her stay. The total wage would be $20,000. PW1 was transferred about $20,000 via Western Union by the boss’ helpers for living expenses and PW1 was told to join a local tour. The defendant also remitted $3,000 to PW1 via Western Union.

(l) PW1 was told to extend her stay further and was given excuses that they failed to get a new ticket, that there was no flight or the baggage was not ready. As most of the money had already been spent, PW1 had no money to buy her own air ticket back to Hong Kong.

(m) During her stay in Lima, PW1 spoke to her friend, Ng, via WhatsApp whether there was contraband in the baggage she was to bring back to Hong Kong for the boss. PW1(Ng?) told her that it was safe as she was the one who introduced PW1 to the job. Ng further sent a copy of the defendant’s HKID card to PW1 via WhatsApp, saying that if PW1 got into trouble, she could point out the defendant.

(n) Around 27 to 28 July 2017, PW1 contacted the defendant, requesting to go back to Hong Kong. The defendant threatened PW1 many times that he would not buy her air ticket back to Hong Kong or pay her any wages if she did not bring the boss’ luggage back to Hong Kong. PW1 would also be responsible for the monetary loss of the ‘coke’ if she failed to bring the boss’ luggage back. He also had PW1’s residential address and would get someone to cause her trouble. PW1 did not know what ‘coke’ meant and did not ask the defendant about it as at the time he was threatening her. PW1 was frightened for her own safety and was worried that she would not be able to return to Hong Kong.

(o) On 2 August 2017, PW1 was told by the boss’ assistant to go downstairs outside the carpark of the hotel. PW1 did as instructed and someone handed a green suitcase to her. She took the suitcase back to her hotel room. PW1 informed the defendant and the boss’ assistant that she had collected the suitcase. As instructed, she took a photo of the green suitcase on her own mobile phone and sent it to them as proof. PW1 was told that they would arrange for her to bring the green suitcase back to Hong Kong on 3 August 2017.

(p) The green suitcase was not locked. PW1 opened it and found only clothes, shoes and ketchup inside the suitcase.

(q) On 3 August 2017, PW1 took her flight from Lima and returned to Hong Kong via Amsterdam. Whilst en route to Hong Kong, the defendant and the boss’ assistants kept in contact with PW1 via WhatsApp. Whilst on transit in Amsterdam, the defendant told PW1 to delete all WhatsApp conversation records with him and to send him a screen capture shot of her mobile phone to prove that she had deleted all chat history with him. PW1 was also to reset the two mobile phones that he had given her and to clear all records in the mobile phones before arrival to Hong Kong. Upon arrival in Hong Kong, PW1 was to hand over the suitcase to the defendant and the defendant would pay her. The defendant also told PW1 that it would be troublesome if the case got blown, therefore all WhatsApp records must be deleted. The defendant told PW1 to ignore what the boss’ assistants said to her and PW1 was to listen to him.

(r) PW1 was told by the boss’ assistants to inform them on arrival in Hong Kong and that someone would come to collect the suitcase at the arrival hall in the airport and she would be paid.

(s) PW1 arrived in Hong Kong and was intercepted at the airport. Upon search of the green suitcase, the clothes and shoes inside were found to contain dangerous drugs. PW1 did not know that the green suitcase carried by her contained dangerous drugs.

Arrest of the Defendant

The defendant was arrested for conspiracy to traffic in dangerous drug on 7 August 2017 at the podium of his home at Wong Chuk Hang. Under caution, he said, “I have dragged ‘Choi Wah’ into it.”

The defendant’s home was searched. Police seized, among other things, the defendant’s mobile phone.

VRI of the Defendant

In a video-recorded interview, the defendant said, under caution, among other things:

Lau Po-yan, Venus, asked him to look for girls to work as escorts to accompany bosses to events in South Africa. Venus told him that for each escort, he would be given $13,000, out of which $8,000 would be given to the girl as reward.

He asked ex-girlfriend Ng Yuen-ching (“Ng”) to find him some female escorts. Ng introduced PW1 and Ah Shum (that is Lie) to him. He obtained from PW1 and Lie their HKID cards, passports and proof of address. He gave their documents to an unknown male driving a vehicle outside The One, Tsim Sha Tsui on 11 July 2017 for Venus to purchase air tickets for them.

At midnight on 12 July 2017, at the entrance of Golden Era Plaza in Mongkok, he collected a bag containing two electronic air tickets for PW1 and Lie, two mobile phones and $3,000, $1,500 for each girl for living expenses.

On 13 July 2017, he saw PW1 off at the airport and gave to PW1 her own and Lie’s electronic air ticket as Lie did not turn up, two mobile phones and $3,000.

Initially, the counter staff did not allow PW1 to board her flight as her stay in Peru was short, taking into account of her flying time and PW1 may not be permitted to enter Peru. The airline company required an explanation as to why the trip was so short. He and PW1 filled in a form at Café de Coral at the Hong Kong airport, providing the address of the hotel where PW1 was to stay, phone number and a random fake name of a contact person in Peru. He gave it back to the person at the check-in counter and PW1 was allowed to board the plane. He kept in contact with PW1 via WhatsApp.

On the 4th or the 5th of day after PW1 had arrived in Peru, PW1 told him that she could not delay her return to Hong Kong because she had to go back to work. Further, PW1 said she had no money and air ticket. He phoned Venus and Venus told him to remit some money to PW1 as living expenses. He remitted $4,000 to PW1 via Western Union. When he informed PW1 of the remittance, PW1 told him that the other party (the people on Venus’ side) had remitted $20,000 to her. PW1 also sent him a screen shot capture of a WhatsApp message that Venus’ people had told PW1 that she would be given $3,000 each day as she extended her stay in Peru.

PW1’s return flight was changed from 22 July 2017 to 24 July 2017 and then to 3 August 2017. He phoned Venus to ask why PW1’s flight was delayed again. Venus told him that the boss was not yet ready. He thought she meant that perhaps the boss had some activities which PW1 was not required to attend.

On 24 July 2017, Venus phoned him and told him that the boss had left Peru and PW1 was to bring his personal luggage back. He told Venus to ensure that the luggage did not contain dangerous drug or smuggled goods. Venus said it did not contain any of these things, meaning that the baggage contained clothes and shoes only. He told Venus that if PW1 saw dangerous drug or prohibited goods in the suitcase, PW1 would not bring the suitcase back to Hong Kong. Venus told him to set his mind at rest and PW1 could search the whole suitcase if she wished.

On 2 August 2017, PW1 told him the boss’ suitcase had arrived and it was given to her at the entrance of her hotel. He told PW1 to make sure that the suitcase was clean and that there were no prohibited items inside the suitcase before she brought it back to Hong Kong. PW1 confirmed to him that there was none inside and he did not think any more of it.

He knew PW1 departed Peru on 3 August 2017 with the boss’ suitcase. They had contact with one another on 4 August 2017 when she arrived in Amsterdam on transit to Hong Kong. He kept in touch with PW1 all along on WhatsApp but on 5 August 2017, PW1 suddenly disappeared.

Sometime after 12 noon, Venus phoned him and told him that the clothing and shoes in the suitcase contained dangerous drugs. He confronted Venus why she set him up. Venus admitted that she knew the clothing and shoes in the suitcase contained dangerous drugs but she needed the money. Venus said many things to placate him that “household allowance” would be paid later. She also told him to cut off his mobile phone service line if it was registered under his name.

He immediately went to Smartone in Causeway Bay to cut off his mobile number 98481121 as it was registered under his name. He changed his mobile to a new telephone number 93886071.

He called Ng and told her that PW1’s suitcase contained dangerous drugs and that he was set up.

He did not know the full name of Venus. He gave a description of Venus to the police. Venus had three mobile phone numbers saved on his mobile phone: 64833124, 62914121(62914123?) and 90941898. For the first telephone number, he had saved it under as the name V Chai. V Chai’s WeChat number was CHER.

His mobile phone contacts also contained PW1’s telephone number 51142017, Ng’s telephone number 63387618 and Lie’s numbers 98886874 and 64458961.

Upon Venus’ instructions, he deleted all conversations with Venus in his mobile phone. Venus told him to get PW1 and Lie’s proof of address as Venus was afraid that after purchasing their air tickets and if they did not go, Venus’ people would go to their respective homes to recover the air ticket cost.

Venus told him that two females were required as the boss had two vacancies left for the job as escorts. He asked PW1 to pretend to be Lie because he heard that they would recover the money for the air ticket and hotel accommodation purchased for Lie. As he did not want to make compensation for it, he asked PW1 to pretend also to be Lie and neither he nor PW1 had been paid for the job and he was set up.

CCTV outside Café de Coral, Hong Kong International Airport

CCTV footages at Café de Coral at Hong Kong International Airport between 10.29 and 10.56 hours on 13 July 2017 captured the defendant and PW1. The footages showed the defendant using his phone and writing something on a document and giving the mobile phone to PW1.

Airline Tickets of PW1 and Lie’s

Net Travel confirmed that on 11 July 2017, a male surnamed Wong purchased two airline tickets for PW1 and Lie.

PW1 and Lie’s flights were both booked for departure with KLM on flight KL888 at 12.20 hours on 13 July 2017 from Hong Kong to Amsterdam and on 14 July 2017 at 18.10 hours on flight KL743 from Amsterdam to Peru.

PW1’s return flight was booked for departure with KLM on 17 July 2017 from Lima to Hong Kong via Amsterdam. Lie’s return flight was booked with Air France departing on 17 July 2017 from Lima to Hong Kong via Paris.

Travel Movement Record

Travel movement record showed that PW1 departed Hong Kong on 13 July 2017 and returned to Hong Kong on 5 August 2017.

Subscriber Check of PW1 and the Defendant’s Mobile Phones

Subscriber check revealed that PW1 and the defendant were the registered owners of telephone numbers 51142017 and 98481121 respectively. Call records showed telephone contacts between PW1 and the defendant on 5, 7, 12, 13 July 2017.

WhatsApp Records on PW1’s Mobile Phone 51142017

WhatsApp records of PW1’s mobile phone number 51142017 show chat history between the following persons and their conversations reveal, inter alia, the following:

(a) Ng’s mobile phone number 63887618 from 5 July 2017 to 5 August 2017:

Ng introduces the job offered by the defendant to PW1.

PW1 asks whether there is anything wrong about the trip as she is not acting as a travel escort and is required to bring suitcase back to Hong Kong. Ng forwards a copy of the defendant’s HKID card to PW1, saying that if there is anything wrong with the suitcase, PW1 can expose the defendant.

On 16 July 2017, PW1 complains to Ng that her flight back to Hong Kong is then changed to 22 July 2017 and the defendant has threatened her that she will receive no remuneration upon her return to Hong Kong if she returns earlier. The defendant has also threatened to cancel her air ticket and will not let her return. PW1 forwards voice messages between the defendant and herself of their dispute to Ng.

(b) Ki Ki, mobile phone number 61201173 from 12 July 2017 to 5 August 2017:

WhatsApp records reveal PW1 discussing the whole course of her trip to her friend Ki Ki as from 14 July 2017 onwards, that PW1’s trip to work as an escort has changed to bringing a suitcase back to Hong Kong for someone and with Ki Ki asking PW1 whether she can reject carrying the suitcase back to Hong Kong to PW1 replying she has been told that she cannot and the suitcase contains only clothes and she can check it herself.

On 2 August 2017, PW1 informs Ki Ki that the suitcase has arrived and it is not locked. PW1 has opened the suitcase, checked it and found out it is “super normal”, containing only clothes, shoes and tomato sauce.

PW1 forwards the defendant’s messages to Ki Ki which reveal the defendant telling PW1 to delete all messages between him and PW1.

(c) The defendant’s mobile phone number 98481121 which showed only two days of communication on 4 August and 5 August 2017:

At 22.36 hours on 4 August 2017, PW1 sends to the defendant a screen capture shot of her WhatsApp chat history with the defendant, showing that she has reset her mobile phone with all previous chat history with the defendant deleted.

At 11.11 hours on 5 August 2017, the defendant instructs PW1 on what to say if, on handover of the luggage, she is questioned about the other female who is supposed to have gone on the trip with her.

And at 11.58 hours on 5 August 2017, the defendant texted PW1 whether she has returned to Hong Kong.

The Defendant’s Mobile Phone Number 93886071

The contact list of the defendant’s mobile phone showed Lau Po-yan’s telephone numbers were 90941898, 62914123 under the name of Venus and 64833124 under the name of V Chai.

WhatsApp records of the defendant’s mobile phone number 93886071 and V Chai’s mobile telephone number 64833124 reveal, inter alia, that:

On 5 August 2017, Venus asks the defendant to send a telephone number with “9” to her saying that he knows what it is about. The defendant then forwards a screen capture of the telephone number 97119523 to Venus. That is one of the telephone numbers used by the boss’ assistant to contact PW1. Venus asked the defendant whether he has called her and the defendant replied that he has made a phone call and does not want to leave a record trail.

On 6 August 2017, Venus texts the defendant whether there is anything on the news yet about PW1. The defendant replies that it is not known yet. Venus tells the defendant that it turns out that wages will be paid even though it is on the news, that there will be comfort money, etc.

Following that, the defendant sends a screen capture shot to Venus of his and Ng’s conversation. In the said conversation, Ng asks the defendant is there is any news, to which the defendant replies “no news”. Ng asks whether she, that is PW1, has taken the things away as she cannot be located. The defendant sends another screen capture shot to Venus as to his and Ng’s conversation where he tells Ng that he had called her (ie PW1) yesterday but the phone line was not registered. The defendant tells Venus that he thinks PW1 has taken it. Venus replies that PW1’s telephone line could have been cut because he has not paid her bill during her stays in Peru. Venus texts the defendant whether they should look for her and knock on her door. The defendant texts Venus that they should not go in person but to ask someone else to go because if she (ie PW1) is really in trouble, they could be ambushed.

WhatsApp records of the defendant’s mobile phone number 93886071 and Lie Fung-fong mobile phone number 98886874 showed, inter alia, that he attempted to recruit Lie as a travel escort. Lie forwarded to the defendant photos of her HKID card, passport and proof of address.

ID Parade

On 4 June 2018, PW1 identified the defendant in an identification parade as Garrick. That is the person who instructed her to bring the green suitcase back from Peru to Hong Kong.

Market Retail Value of Drugs

The estimated value of the drugs seized was $478,467.

The defendant now admits and accepts that he conspired together with Venus (that is Lau Po-yan) and other persons unknown to unlawfully traffic in a dangerous drug as particularized in the charge by luring PW1 to carry the green suitcase which he knew contained dangerous drug from Peru to Hong Kong.

Antecedent Statement of the Defendant

The defendant is now aged 23, locally born. He was educated up to Form 4. He had been a salesman and an information technology salesman. He is single. Before his remand, he was living with his grandmother, mother and younger brother.

He had a number of convictions recorded against him between 2012 and 2017. In 2012, he was convicted of one count of assault occasioning actual bodily harm. In 2014, he was convicted of unlawful sexual intercourse with a girl under the age of 16. In 2017, he was convicted of four counts of theft.

Mitigation

Mr Ng in his mitigation submits that the defendant pleaded guilty at the earliest opportunity on 27 May 2019 at the committal proceedings.

Mr Ng submits that the defendant, subsequent to his plea, gave three non-prejudicial statements against Lau Po-yan and identified her in an identification parade. He had confirmed with the prosecution that he was willing and ready to give evidence against Lau Po-yan. The assistance provided by the defendant has resulted in Lau Po-yan pleading guilty to a charge of conspiracy to traffic in a dangerous drug in HCCC 169/2019.

Mr Ng submits that given the quantity of cocaine involved in this case, a starting point of 15 years and 8 months is appropriate. He reckons that the sentence will be enhanced because of the international element in the present case. He draws my attention to HKSAR v Chung Ping Kun [2014] 6 HKC and submits that given the quantity of cocaine involved, an enhancement of 1 year will be appropriate. He accepts also that the fact that an innocent agent was used in this case warrants a further enhancement. He urges me to give the defendant a discount in sentence up to 45 per cent for his guilty plea and assistance to the prosecution, citing HKSAR v Lo Sze Tung Stephanie, CACC 190/2017.

Consideration

This case concerned a conspiracy to traffic 425 grammes of cocaine into Hong Kong from Lima, Peru. Applying the tariff in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC 342, an initial starting point of 15½ years’ imprisonment is appropriate.

I find the presence of two aggravating features: (1) the international factor given that the conspiracy was to traffic cocaine into Hong Kong from Lima, Peru; and (2) the use of an innocent agent. In HKSAR v Chung Ping Kun, the Court of Appeal stated that for trafficking in heroin, cocaine and ‘Ice’ where under 1,000 grammes:

“9. As a broad guideline for drugs of this kind below 1,000 grammes, we will suggest the level of enhancement as follows:

(1) Up to 250 grammes: 6 months

(2) Between 250 grammes and 500 grammes: 6 months to 1 year

(3) Between 500 and 1,000 grammes: 1 year to 2 years.”

In my judgment, an enhancement of 9 months is appropriate for the international factor in the present case.

PW1, a young girl of 22, was used in the scheme. She had no knowledge that she was helping others to traffic a large quantity of cocaine into Hong Kong. The use of an innocent agent like PW1 would expose her to the danger of prostitution and, upon conviction, a lengthy imprisonment. In fact, after PW1 was arrested, she had been detained until June 2018. In my judgment, the use of an innocent agent in circumstances like the present case calls for an enhancement of 1½ years.

The initial starting point of 15½ years is enhanced to 17 years and 9 months, that is 213 months, for the reasons given. The defendant indicated he would plead guilty to the charge at the earliest opportunity. He is entitled to one‑third reduction for his guilty plea.

The defendant is entitled to further reduction for his assistance to the prosecution. He agreed to give evidence for the prosecution in the trial of Lau Po-yan and three non-prejudicial statements were given by the defendant in that regard. After the prosecution had made known its intention to call the defendant as a witness, Lau Po-yan indicated she would plead guilty to the charge and she pleaded guilty to the charge, admitted the facts and was convicted before me today. In my judgment, the defendant is entitled to 45 per cent reduction for his plea and assistance to the prosecution. That would bring his sentence down to 9 years and 9 months’ imprisonment. That is 117 months.

Apart from the guilty plea and the assistance to the prosecution, there is no other mitigating factor. For the reasons given, I sentence the defendant to 9 years and 9 months’ imprisonment.