HKSAR v. TANG HO MING AND ANOTHER

HCCC 511/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 511 OF 2014

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

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COURT: D1 and D2 each pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

D1 was intercepted on his arrival from Shenzhen as a passenger in a private vehicle. He told Customs officers that he had nothing to declare. He was seen holding a plastic bag when he alighted from that vehicle for that vehicle to be searched. He was taken to a search room and Customs officers found two brown envelopes containing six binders which contained, altogether, 76 laminated photographs, in that plastic bag. The photographs, when cut open, were found sandwiched with cloths containing cocaine.

D1 initially denied knowledge of the drugs inside the photographs but said that he collected the albums from Shenzhen and Macau. He also said that he was going to hand them over to another person at the Huanggang bus stop at Tsuen Wan MTR.

The participation of D1 in a controlled delivery operation resulted in D2’s arrest when D1 handed over the bag containing the drugs to him.

Although in his video-recorded interview, D1 maintained his lack of knowledge of the drugs, he now admits that he was bringing cocaine back into Hong Kong.

D2 also admits that he knew cocaine was inside the photographs in that bag handed to him by D1.

Analysis of the drugs revealed 2.15 kilogrammes of a substance containing 1.52 kilogrammes of cocaine. The market value was around HK$2.2 million.

D1 is now aged 24. He has two previous convictions not related to dangerous drugs. The last one dated back in 2011 for dishonesty-related offence and triad offence and also a breach of probation order for which he was sentenced to DATC.

D2 is now aged 59 with two criminal records back in 2007 and 2008, none related to dangerous drugs.

Counsel for D1 told me that D1’s upbringing was largely affected by the suicide of his father when he was 11 and the family was left destitute. Upon quitting school, he tried to maintain stable employment but his previous employment ceased due to business downturn and he was foolishly led into commission of the present offence for a relatively small amount of reward. Knowing that he would be put away for a long time, he aims at making use of the time whilst incarcerated to take up studies for a business administration degree.

Counsel for D2 told me that D2 is divorced. His son and daughter are now both grownups and he has a fiancée in Shenzhen, whom he planned to marry. It was submitted that D2 ran into financial difficulties and owed debts more than HK$90,000 at the time of the offence which caused him to commit the present offence.

Counsel for D2 submitted that the assistance given by D2 in offering to give evidence against D1 in relation to proving D1’s knowledge of the drugs was instrumental resulting in the plea of D1. Counsel further submitted that the aggravating feature of international or cross-border element should not apply to D2 for the following reasons:

(1) There is no evidence that D2 knew that D1 smuggled the drugs into Hong Kong from China; and

(2) D2 is not jointly charged with D1 and thus the basis of the prosecution case was not that they were smuggling drugs from China into Hong Kong together.

Counsel for D1 relied on the case of Hong Kong SAR v Yeung Ho Wai, CACC 271/2013, and urges this court to enhance the starting point by 1 instead of 2 years’ imprisonment. Counsel further urges for a 45 per cent discount for D1’s participation in the controlled delivery resulting in D2’s arrest.

In sentencing the defendants, I have considered each of their guilty pleas, mitigation forwarded by counsel on their behalves and the existing tariff for trafficking in cocaine. I have also perused the letters of mitigation forwarded.

According to the guidelines laid down by the case of Abdallah, trafficking in cocaine weighing between 1,200 to 4,000 grammes, the tariff is one between 23 to 26 years’ imprisonment. I consider 23 years as an appropriate starting point in the present case.

There is a cross-border element involved. That applies to D1 as well as D2. It is clear from D2’s non-prejudicial statement, in particular the one dated 29 July this year, which counsel has relied on to say that these were instrumental to the plea of D1, that D2 knew full well, both from Yung and D1, prior to his arrest that D1 was bringing the drugs to him from China.

The amount of narcotics involved in this case is similar to that in HKSAR v Toerab Mohamedajoeb, CACC 278/2010, where the Court of Appeal did not disturb a starting point of 23 years and an enhancement of 2 years. The Court of Appeal in Yeung Ho Wai CACC 271/2013 did not disturb the 1 year enhancement by the trial judge since they were of the view that the starting point adopted was already at the high end of the appropriate range. Therefore, under such circumstances and considering the totality of the sentence, the Court of Appeal dismissed the appeal against sentence.

That case is not to be seen as an authority for a 1 year enhancement for the international factor when the drugs involved were more than 1 kilogramme. The guidelines laid down in Abdallah are clear.

I consider 25 years’ imprisonment after trial, applicable to both D1 and D2, appropriate in the present case.

I turn to the discount. The Court of Appeal in HKSAR v Gopal Muthusamy, CACC 238/2010, afforded the appellant who took part in a controlled delivery which resulted in no arrest a 40 per cent discount. The case of Liew Tek Choon & Another, CACC 182/2009, does not take this matter any further since the appellant there was convicted after trial but was given a discount of 2 years from the starting point of 26 years.

Unlike the case of HKSAR v Eriksson which is cited in the case of Kay Sik Hong Billy & Others, CACC 145/2011, where the Court of Appeal noted that the assistance provided by that appellant was considerable, involving numerous arrests and convictions and so afforded him a 45 per cent discount, in my view, D1’s level of assistance to the authorities is no more than that of normal assistance leading to the arrest of D2. I further noted that D1’s plea only came on the first day of trial, after D2’s NPS and indication of willingness to testify against him instead of at the earliest possible instance.

So D1’s taking part in the controlled delivery resulting in the arrest of D2 earns him a 40 per cent discount, whilst D2’s pivotal role in giving a non-prejudicial statement to the police and his willingness to testify against D1 which contributed to D1’s pleading guilty earns him a 45 per cent discount.

D1 is sentenced to 15 years’ imprisonment and D2 is sentenced to 13 years and 9 months’ imprisonment.