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HCCC 434/2015 & 126/2016
(Consolidated)
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NOS 434 OF 2015 AND 126 OF 2016
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| Before: |
Hon D’Almada Remedios J |
| Date: |
20 March 2017 at 3.37 pm |
| Present: |
Mr John McNamara, on fiat, for HKSAR |
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Mr James Sherry, instructed by Jal N Karbhari & Co,assigned by DLA, for the accused |
| Offence: |
(1) & (2) Conspiracy to traffic in a dangerous drug |
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(串謀販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendant, you have been found guilty after trial by a jury of two counts of conspiracy to traffic in dangerous drugs, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance and
sections 159A and 159C of the Crimes Ordinance.
On the 1st count, you were found to have, between 1 April 2014 and 6 July 2014, both days inclusive, in Hong Kong, conspired together with Ng Ka-hin, Joe Chan and a person known as ‘Jerry’, to unlawfully traffic in a dangerous drug, namely cocaine.
In the 2nd count, you were found to have, between a date unknown on or before 20 August 2014 and 31 August 2014, both days inclusive, in Hong Kong, to have conspired together with Chan Po-yu and other persons, to unlawfully traffic in a dangerous drug, namely methamphetamine hydrochloride, otherwise commonly known as ‘Ice’.
In relation to the 1st count involving Ng Ka-hin, Mr Ng was arrested at the Hong Kong International Airport on 6 July 2014, having arrived in Hong Kong on a flight from Bangladesh. Found concealed in his suitcase was drugs of 5.98 kilogrammes of a solid containing 4.82 kilogrammes of cocaine.
The street value of the dangerous drugs was estimated to be about HK$6.2 million.
Mr Ng was sentenced to 18 years and 8 months’ imprisonment after having pleaded guilty to trafficking in dangerous drugs.
As to Count 2, Chan Po-yu was arrested on 31 August, at Hong Kong International Airport, checking into a flight to go to Sydney. Found concealed in her rucksack were drugs in the amount of 1,349 grammes of a crystalline solid containing 1,340 grammes of methamphetamine hydrochloride.
She was sentenced to 16 years and 8 months’ imprisonment after a plea of guilty.
I have before me the respective reasons for sentence of Chan Po-yu, that is in case number HCCC 69/2015, given by Deputy High Court Judge Wilson Chan (as he then was) which sentence was passed on Ms Chan Po-yu on 5 May 2016, and I have my reasons of sentence when I sentenced Ng Ka-hin in HCCC 528/2014 on 17 June 2015.
The starting point for Mr Ng, given the quantity of drugs that he had been trafficking in, was 26 years’ imprisonment. There was an enhancement of that starting point as he had imported the drugs into Hong Kong and a further 2 years’ imprisonment was added. Therefore, his starting point was 28 years’ imprisonment. Given his plea of guilty, that starting point was reduced and he was therefore sentenced to 18 years and 8 months’ imprisonment.
As for Chan Po-yu, the starting point for her trafficking in that amount of ‘Ice’ was 23 years’ imprisonment and that starting point was enhanced by 2 years, given the international element of exporting the drugs which had a starting point then of 25 years’ imprisonment. Given the one-third discount for her plea of guilty, she was sentenced to 16 years and 8 months’ imprisonment.
Mr Sherry, your counsel, has accepted that that is the approximate sentence for you; accepting that you were an organiser of this, it could be a little bit higher.
The conspiracy in respect of both charges in this case was that you had made an agreement with Ng and Chan separately to traffic in dangerous drugs. They were the mules or the couriers who would be taking the drugs out of Hong Kong or into Hong Kong. You were one of the people who were the organiser, recruiter and arranging for them to carry out the very serious offence of trafficking in drugs. Certainly, without people like yourselves recruiting these mules and couriers who are in desperate financial needs, these people might not have committed this very serious offence.
It appears to me in these two cases that you and your co-conspirators preyed on people in desperate financial positions. You used their desperate financial circumstances and offered to them large amounts of money so that they would commit these very, very serious offences. Ng and Chan were two people who had never committed offences before, but all they wanted was to pay off their debts. For Ng, he had large expenses to pay in view of his girlfriend’s operation. For Chan, it appears, apart from wanting the money, she wanted to pay for her sister’s school books.
The WhatsApp messages tell a very telling, clear story of what your involvement was. You played a very important role in making sure these two committed this trafficking offence. Despite their desperation and needing money and their requesting for advance payments, these were not given.
In respect of Ng, you managed even to fool him to pay for his own ticket when he changed it from Bangladesh. I say ‘fool him’ only because he was in such desperation to earn more money, yet he still paid his own fare.
You were, in my view, deliberately manipulating these innocent, desperate people to commit these serious offences so that you could earn your huge commissions. In respect of Ng, you were even trying to fleece your boss. No doubt, your role in these offences were, in my view, far more serious than the mules and couriers that you took advantage of in Ng and Chan.
In the circumstances, the starting point should be reflected in that your role was more serious and thus a higher starting point is appropriate.
You are a man of 34 years of age. You have one previous conviction of theft in 2009. You are single, of good health. You have completed up to Form 5 education and attempted to do Form 6 and 7, I am told, but did not take the exam. Mr Sherry has told me that your parents passed away some 10 and 9 years ago respectively. That was when you were approximately 24 years of age. You have a sister but she has since emigrated to Canada and, therefore, you are in Hong Kong without any family.
I can understand if you were a young man, having no family and parents that you could be led astray. You were already 24 by the time your parents left. You seemed to have got yourself involved in these very serious offences at a late age now, or at least of about 30-odd years of age. Clearly, for you, this would have been easy, fast money, using mules to bring drugs to Hong Kong or out of Hong Kong.
As for the offences, as I mentioned, what I will do is take a combined approach, that is take the total amount of drugs involved and reflect that in your sentence, and then I shall sentence you individually for each offence.
The total quantity of drugs here would be 6,160 grammes, I would take, of cocaine. That is the total in both Count 1 and Count 2. In following the guideline case of HKSAR v Abdallah Anwar Abbas, the guideline starting point for traffickers after trial for the amount of drugs between 4,000 to 15,000 grammes of cocaine, is a sentence of between 26 to 30 years’ imprisonment. Given the amount of drugs in this case, I take a starting point of 26 years’ imprisonment.
In this case, there is an importing of drugs and an exporting of drugs. For an amount over 1 kilogramme, it should be 2 years’ enhancement. I will take the enhancement in these two cases to one of 3 years’ imprisonment. That would make a further sentencing point of 29 years’ imprisonment. Given your more serious role in this case and in the conspiracy, I take a further enhancement of 1 year.
That will make a total term of 30 years’ imprisonment to which you are so sentenced.
Now I shall turn to deal individually with the charges.
On Charge 1, for 4,820 grammes of cocaine, 26 years’ imprisonment is appropriate as a starting point. For the international element of importing dangerous drugs. I enhance that term by 2 years’ imprisonment. That makes a term of 28 years’ imprisonment. And for the further enhancement for your role in this offence of 1 year, on Charge 1, you shall be sentenced to 29 years’ imprisonment.
On Charge 2, for ‘Ice’ of 1,340 grammes or the equivalent to that of cocaine, a starting point of 23 years’ imprisonment. Again, for the aggravating factor of exporting, the international element, a further 2 years’ imprisonment, which makes 25 years, plus a further enhancement of 1 year for your role in the conspiracy which makes a total period of imprisonment for Charge 2 of 26 years.
To reflect the totality of 30 years’ imprisonment, I order 1 year of Charge 2 to run consecutive to Charge 1 and the remainder of the term to run concurrent.
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