HKSAR v. FAN CHI SHING AND ANOTHER

HCCC 69/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: There are two defendants in this case. They are originally jointly charged with one count of trafficking in a dangerous drug, Count 1, and each of them is also charged with another count of trafficking in a dangerous drug for a lesser quantity, Count 2 and Count 3 respectively, as an alternative to Count 1.

On 26 July 2013, they appeared before Deputy Judge Woo. Both defendants pleaded not guilty to Count 1 but each pleaded guilty to the alternative count with which he respectively is charged. Having admitted the facts presented by the prosecution, D1 was convicted of Count 2 and D2 was convicted of Count 3.

Count 1 was ordered to be left on the court file marked not to be proceeded with without leave of the court. The matter was then adjourned and eventually the case was passed to me to follow up.

Before me, counsel representing the two defendants confirmed the pleas and respective convictions and accepted that the proceedings can proceed to the sentencing stage.

In sentencing, I have taken into account the whole circumstances of the case, including its facts, in particular the type and quantity of the dangerous drug involved, the background of each defendant and mitigation put forward on their behalf.

The facts of the case are simple. On 25 July 2012, the defendants were intercepted by Customs officers at the departure hall of the Hong Kong International Airport after they had reported themselves to the tour guide of a guided tour to Australia. Each of them was found to have 10 packages attached to his legs with bandages and wrappings.

Under caution, D1 admitted that he was to take the things to Australia for a reward. He had received AU$1,500 and was to receive HK$100,000 upon delivery of the things.

A few months before the incident, he was introduced to a man who asked him whether he wanted to make some money by travelling for fun and for free. He agreed. A few days before the incident, he accepted an invitation by this man and went to the mainland for a meal. There he met D2 for the first time.

In the morning on 25 July, D2 came to his hotel room where he was staying. Then a man came and told them that they were arranged to join a tour group to Australia and he was asked to bring a few packets to Australia for the reward. The packets were then strapped on him and D2 inside the room.

D2 admitted that he was asked to make arrangement to join a tour to Australia for himself and D1 whom he did not know before. He met D1 for the first time during a meal in the mainland. On 25 July, at a hotel room, packets were packed on him and D1. He was given AU$1,500 and was to receive a further HK$100,000 in Australia.

The dangerous drug found on D1 was 1.38 kilogrammes of a mixture containing 1.00 kilogramme of heroin hydrochloride. The dangerous drug found on D2 was 1.37 kilogrammes of a mixture containing 1.02 kilogrammes of heroin hydrochloride.

D1 is now 35 years of age. He is married. He received education up to lower secondary level. He was a palletizing worker at the airport cargo terminal but has been, since October 2010, on sick leave due to injury at work. Before that, he had worked in various different jobs in the construction industry.

D1 has, on three occasions, been convicted of offences. In March 2012, he was convicted of one charge of possession of dangerous drug and was sentenced to 2 months’ imprisonment suspended for 12 months and a fine of $1,000. Learned counsel for D1, Mr Necholas, said the dangerous drug D1 possessed at that time was for relief of pain which was a result of the above said injury. D1 committed the present offence during the duration of the suspended sentence. The other convictions were for unlawful sexual intercourse with a girl under the age of 16. Mr Necholas told the court that D1 has married this lady and they now have a daughter.

Mr Necholas stressed that D1 had pleaded guilty at the earliest opportunity. He admitted the offence as soon as he was arrested and was co-operative with the investigation authority. Mr Necholas also impressed upon the court that D1 is now in full and genuine remorse. He has joined a Christian association and decided to turn over a new leaf.

Mr Necholas told the court that D1 is from a working class family. His father passed away when he was very young. His mother shouldered up the responsibility of bringing up nine children in the family, amongst whom, D1 is the youngest.

Mr Necholas said that, after the accident, D1 was unable to continue his trade and his income dropped significantly. D1 is still pursuing his claim for compensation. He applied for financial assistance from the government but all were turned down as he had a share in a property jointly owned by him and his siblings. It was under financial pressure that D1 was lured into participating in the present case.

The court was told that D1 has been suffering from depression. From the information provided to the court, I am satisfied that this is the case. Mr Necholas sensibly agreed that obtaining a report for the purpose of sentencing serves not much purpose as D1 has been receiving attention when he is in custody and such treatment will continue.

D2 is 28 years of age. He was educated up to form 3. He had engaged in various jobs, including being a chef in a famous restaurant. He has also worked as a crane operator. He is single. He is a first-time offender. This is a matter which counsel for D2, Mr Allan, asked the court to take into account. Mr Allan also stressed that D2 had pleaded guilty at the earliest opportunity. D2 is also co-operative with the investigating authority and had admitted the offence instantly upon arrest.

Mr Allan said D2 is a filial son and has been supporting the family financially. The mother of D2 is suffering from diabetes. D2 has a steady girlfriend and they had planned to get married. Despite the incident, the lady still supports D2 and is present at today’s hearing.

Two letters were produced, one written by D2 and one by his sister. In the letter, D2 expressed remorse. His sister said D2 is of good nature and believed he was exploited by others in committing this offence.

In Queen v Lau Tak Ming [1990] 2 HKLRD 70, the Court of Appeal held that an imprisonment term of more than 20 years should be imposed when the narcotic content of heroin involved in a case was more than 600 grammes. In Hong Kong SAR v Abdallah Anwar Abbas, CACC 304/2008, the Court of Appeal issued supplementary guidelines. The court held that if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes, the sentence should be 20 to 23 years’ imprisonment.

If an international element is involved, it is an aggravating factor. In my judgment, for each defendant, an enhancement of 1 year is necessary for the international element.

Having regard to the whole circumstances, in particular the quantity of the dangerous drug involved, I am of the view that an ultimate starting point of 23 years is appropriate for the count each defendant stands convicted.

Taking into account the guilty plea, each of the defendants is entitled to a one-third discount. Besides there is information on paper before me which persuades me that both defendants are entitled to a further discount, so that each of them is entitled to a total discount of about 40 per cent.

Both counsel for the defence mentioned that the defendants had been tipped off. In all the circumstances, I do not see there are sufficient reasons for any further discount arising from the circumstances in which the two defendants were arrested.

Defendants, please stand up.

For the above said reasons, D1, you are sentenced to 13 years and 10 months’ imprisonment for Count 2.

You committed this offence 4 months after a suspended sentence had been imposed on you which was also a dangerous drug-related offence. I see no reason not to activate the sentence. I therefore also order activation of the suspended sentence and the sentence in the present case to run wholly consecutively to the activated sentence.

D2, you are sentenced to 13 years and 10 months’ imprisonment for Count 3.