HKSAR v. TANG CHIU SING, KELVIN AND ANOTHER

HCCC 177/2021
HCCC 178/2021

[2023] HKCFI 3212

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 177 OF 2021

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 178 OF 2021

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

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COURT: Now below are my brief reasons for sentence. The case came to light on 25 February 2019. Now this pertains to both High Court case number 177 and 178 of 2021. As far as 177 is concerned, that would be the amended indictment pertaining to the 1^st defendant, Tang Chiu-sing Kelvin and the 2^nd defendant in 177, Wong Cho-hon. And it also, in relation to the pleas of guilty in HCCC 178/2021, and in relation to Kwan Sung-fai and also Wong Cho-hon.

So the brief facts I am going to say before sentencing are that the case came to light on 25 February 2019 and the police found inside a light goods vehicle, which had been driven into a building forecourt called La Regent Park, and in that van was found a vast quantity of drugs. And which was to reveal that the 1^st defendant, Tang Chiu-sing Kelvin was driving and Wong Cho-hon and Kwan Sung-fai were seen standing by the side of the van purporting to unload the goods which is the drugs from the van.

Tang was arrested and found to have keys to the van and also a key to the premises, which is the subject matter of the 2^nd charge, was also found on him. And in those premises were found another large quantity of drugs and also drug manufacturing equipment. The government chemist had gone through the premises and found that the equipment was suitable for drug manufacturing. The premises were rented by Kwan Sung-fai, who is the 1^st accused in HCCC 178/2021. And subsequent investigation also revealed the money laundering activities carried out by Tang Chiu-sing Kelvin and Wong Cho-hon.

Now, this is the background of the case which was revealed subsequently.

The 1^st accused was tried before a jury on the re-amended indictment in HCCC 177 where he was the sole defendant before the jury. He was convicted of Counts 1 and 2, that is the two trafficking offences in relation to the drugs found in the van and the drugs found in the premises; and also Count 4, which is the money laundering activity.

The 2^nd defendant had, before trial, pleaded guilty on the amended indictment to Count 5, which is the money laundering charge, and he had pleaded guilty to the trafficking of the drugs in the van at an earlier time. And the last defendant, Kwan Sung-fai, which is the 1^st defendant in HCCC 178/2021, had pleaded guilty to manufacturing. And so I will deal with the sentences in relation to these offences.

The 1^st defendant as I have said was convicted of two counts of trafficking. The 1^st count involves cocaine hydrochloride, 129.431 kilogrammes of it; in the 2^nd count, which is the drugs found inside the premises, it was to the amount of 184.771 kilogrammes of cocaine hydrochloride and 21.500 grammes of cocaine, giving us roughly a total amount of some 335.702 kilogrammes, including the cocaine. And the sentence for such vast amount of drugs had been discussed previously in other cases in the Court of Appeal whether life sentences were appropriate, for example, in the case of Ng Muk Kam in CACC 685/1993, for 306 kilogrammes the Court of Appeal reduced the life imprisonment to one of 35 years.

As counsel has correctly pointed out, life imprisonment is not appropriate in this case although the amount is large, because the considerations for whether to impose a life imprisonment, the courts often refer to the English case of R v Hodgson [1968] 52 Cr App R 113 as to what considerations are relevant to the consideration of life imprisonment. And although it is not binding on this court, it is useful to use it as a yardstick to consider whether, apart from the quantity, whether other circumstances exist to make this life imprisonment appropriate for these offences.

One of the considerations is whether the defendant appears likely to commit such offence in the future. The defendant has a clear record and in light of all the facts in this case, I do not think that life imprisonment is appropriate. However, I will adopt a starting point of 35 years for the total amount of drugs in the van and in the premises, as those were found on the same occasion and the defendant had keys to the premises to show he was more than a courier. However, he was acquitted of the manufacturing charge.

And having considered all that, I therefore consider that an appropriate sentence should be in the following way:

In Count 1, for 129.431 kilogrammes, I refer to the case of Abdallah which recommended that for trafficking in between 1,200 to 4,000 grammes, a sentence in the region of 23 to 26 years would be appropriate. So for Count 1, I would sentence the defendant to 23 years.

In relation to Count 2, the amount is 184.771 kilogrammes of cocaine hydrochloride, plus 21.500 grammes of cocaine. And again, I would sentence the defendant, Tang Chiu-sing Kelvin, to 23 years’ imprisonment on the 2^nd count.

Now 12 years of that will be consecutive to the sentence in Count 1, making a total of 35 years. And I see no mitigating factors at all in this case. It was a full fight and although the defendant has a clear record, but that pales into insignificance against the considerable seriousness of this case.

In relation to Count 4, for the money laundering activity, the amount involved is 2.74 million and the period was from 1 February 2018 to 26 February 2019, just a little over a year. I agree with counsel that there is no evidence of the predicate offence nor that this was proceeds of drug activity, so I will not consider that. But it was carried out over a period of just over a year. Therefore, it was not sophisticated scheme that was indulged in, so I would consider a starting point of 3½ years to be appropriate.

And I have to consider therefore the totality principle and, however, this is a completely separate offence to the drug trafficking and so I consider that it is only appropriate to make the 3½ years consecutive to the drug trafficking charges. So he will be sent to prison for 38½ years.

Now, the second person I will deal with now is Wong Cho-hon. He had pleaded guilty to the amended indictment in HCCC 177/2021 before trial and that was for the money laundering activity involving $1.729 million, and from 1 February 2018 to 26 February 2019, again, just over a year. And as Mr Ho correctly submitted in his mitigation, there is no evidence of any international element in this case, and it was not a sophisticated scheme and it lasted for just over a year.

He did plead guilty before trial but after the return date and I agree that he is entitled to the 25 per cent discount, so therefore the starting point I will adopt is one of 3½ years, reduced by 25 per cent, and therefore he is sentenced to 31½ months for this charge.

Now, in relation to the trafficking in the dangerous drugs of the quantity of drugs inside the van, which is 129.431 kilogrammes of cocaine hydrochloride, as for in the case of Tang Chiu-sing Kelvin, I will adopt a starting point of 23 years. Because he did plead guilty at an earliest opportunity, he is entitled to the one-third discount, so he will go to prison on that charge for 15 years and 4 months.

Now, in relation to the totality principle. As I have considered in the case of Tang Chiu-sing, this is a completely separate offence to that of trafficking and therefore I will make the sentence in the money laundering charge, the 31½ months to be consecutive to the 15 years and 4 months, which I impose for the trafficking in dangerous drug charge.

(Court indicates to counsel that calculations will need to be checked and reconfirmed)

Now, in relation to Kwan Sung-fai, the accused in HCCC 178/2021, he had pleaded guilty to manufacturing. His counsel, Mr Kwan, submitted that the defendant had originally rented the premises in order for his wife to live in. However, his wife got pregnant and changed her mind and preferred to stay on the Mainland. And therefore he used those premises, initially in January 2019, for manufacturing small scale of drugs. And according to Mr Kwan, he said he was informed by the defendant that the large quantity of drugs which were found on the premises by the police only appeared on the day of the offence. And his role was not to manufacture but that he was supposed to deliver the drugs, the completed drugs from the flat. However, as I have said, his role cannot be just one of a courier. He allowed the manufacturing equipment to be in the premises, apart from the drugs. As I said about as for Tang Chiu-sing, the maximum is life imprisonment and I do not consider that this is a case to consider life imprisonment.

Now, there are cases with reference to manufacturing. The two cases I wish to refer to is HKSAR v Wong Ping Kay in [2002] (3)  HKLRD 161 where 18 years starting point was imposed for small scale heroin manufacturing. Now, in the case of HKSAR v Tse Kwan Wai & Others [2008] HKR(sic)  924, it was observed by the court that manufacturing is more serious than just trafficking and that 20 years’ starting point for a general dogsbody, as the court pointed out, was not severe.

Now, although this operation cannot be considered to be of the very sophisticated type of manufacturing, but it is still capable of manufacturing a large quantity. I would therefore adopt an 18-year starting point. And giving him the one-third discount, I will sentence him to 12 years’ imprisonment.

(Submissions re sentence length calculation)

COURT: Because of slip of the tongue rule, I will sentence therefore the defendant, Wong Cho-hon, in total to a sentence of 17 years and 11½ months.