HKSAR v. WONG PAK YEUNG AND ANOTHER

HCCC94/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 94 OF 2009

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

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COURT:  Mr Wong Pak-yeung, Mr Wong Yuen-man, please stand up.

     You, Wong Pak-yeung, pleaded guilty on arraignment today to Count 1 of the indictment, namely that on 9 November 2008 at the Customs Arrival Hall B, Terminal 1 of Hong Kong International Airport, you unlawfully trafficked in a dangerous drug, namely 1005.35 grammes of a powder containing 798.79 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

     For your part, Wong Yuen-man, you pleaded guilty to Counts 2 and 3 on the indictment.  In pleading guilty to Count 2, you accepted that on 9 November at that same Customs Arrival Hall B of Terminal 1, Hong Kong International Airport, you unlawfully trafficked in a dangerous drug, namely 1975.25 grammes of a powder containing 1580.79 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

     In pleading guilty to Count 3, you, Wong Yuen-man, accepted that on 9 November 2008, inside Flat 635 of Choi Wah House, Choi Yuen Estate, Sheung Shui, New Territories, you had in your possession a dangerous drug, namely 4.93 grammes of herbal cannabis.

     Having pleaded guilty, in your case, Wong Pak-yeung, to Count 1, and in your case, Wong Yuen-man, to Counts 2 and 3, each of you accepted, as the basis of this court accepting those pleas of guilty and proceeding to sentence, the Summary of Facts describing the circumstances of the commission of the offences.

     Turning to the facts relevant to Counts 1 and 2, on the morning of 9 November 2008, both of you arrived in Hong Kong, having travelled by Cathay Pacific Airlines from Johannesburg in South Africa.

     In the course of the proceedings today, you, or your counsel on your behalf, Wong Pak-yeung, have confirmed that you had travelled from Sao Paolo in Brazil via Johannesburg to Hong Kong.  A boarding card in your name describing that journey is amongst the exhibits.

     For your part, Wong Yuen-man, your counsel has informed the court that you too had made that journey from South America, Brazil, via South Africa to Hong Kong.

     A personal search of each of you revealed the presence of cocaine strapped to your respective bodies.  In your case, Wong Pak-yeung, it was strapped to both your waist and thighs; whereas in your case, Wong Yuen-man, it was strapped to your waist, thighs and calves.

     Having been arrested and cautioned, you, Wong Pak-yeung, admitted that the substance was “coke”.  However, later you denied having made that admission.

     In your case, Wong Yuen-man, after you were arrested and cautioned, you asserted that you did not know the nature of the item strapped to your body.

     During these proceedings this morning it was established that you, Wong Pak-yeung, were in possession at the time of your detention at the airport of various currencies:  4,900 US dollars; 1,022 Hong Kong dollars; 77 Brazilian Real; 20 South African Rand.

     For your part, Wong Yuen-man, it was established that you were in possession of 460 US dollars; 5,150 Hong Kong dollars; 23 Brazilian Real; 20 South African Rand.

     Turning to the facts relevant to Count 3, a search of your residential premises, Wong Yuen-man, revealed the presence of herbal cannabis the subject of Count 3 in a pocket of a jacket found in those premises.  In response to having been arrested and cautioned in respect of that discovery, you asserted that it was for your own consumption.

     You, Wong Pak-yeung, accept the accuracy of the criminal record provided to the court in which you are described as having been convicted on two occasions in respect of offences in connection with dangerous drugs.  In 1987, when  you were 16 years of age, you were convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking, in consequence of which a probation order for 18 months was imposed upon you.  In 2002, you were fined $1,200 on being convicted of an offence of possession of dangerous drugs.

     Turning then to mitigation, both your counsel, Mr Tong for you, Mr Wong Pak-yeung, and Mr Raffell for you, Mr Wong Yuen-man, have been realistic in their approach to mitigation.  The obvious and primary factor of mitigation is your pleas of guilty.

     You, Mr Wong Pak-yeung, are 37 years of age and are single.  Your counsel, Mr Tong, invites the court to regard your convictions in respect of the two offences in relation to dangerous drugs as being minor in comparison to the current offence.  The court accepts that invitation.

     You, Mr Wong Yuen-man, are 35 years of age, a divorced man.  Importantly, you are a man with no criminal record.  Mr Raffell has explained to the court the circumstances that led you into the commission of these offences.  The court has been told that you found yourself in debt and that those to whom you were indebted pressured you into performing the role of a courier that you did perform.  Mr Raffell has said that on the first occasion that you travelled to South America to perform that role, you refused to act as a courier, but that is what you did on the second occasion, having been the subject of enhanced threats.  However, he candidly accepted that that level of threats was in no way approaching the legal concept of duress.

     I turn then to a consideration of the starting points for sentence to be taken in respect of Counts 1 and 2.  As the Court of Appeal stated in Attorney General v Pedro Nel Rojas [1994] 1 HKC 432:

“The guidelines for sentencing articulated in respect of unlawful trafficking in heroin, in the judgment of the Court of Appeal in R v Lau Tak Ming, are equally applicable to sentencing in respect of unlawful trafficking in cocaine.”

In the latter judgment, the court indicated that there could be an upward increase in sentence for unlawfully trafficking in amounts greater than the upper stipulated band of 400 to 600 grammes of heroin, for which band the guideline sentence was 15 to 20 years’ imprisonment.

     In HKSAR v Abdullah Anwar Abbas (2009) 2 HKLRD 437, the Court of Appeal provided further guidelines for sentencing for unlawfully trafficking in cocaine or heroin in amounts in excess of 600 grammes.  That particular case was a case of unlawfully trafficking in heroin.  As I indicated earlier, the courts have approached the two substances in the same way.

     Also, the court identified as aggravating factors factual matters which call for an enhancement of sentence.  It gave further guidelines as to the level of enhancement of sentence.  However, as the court went on to state in terms in that judgment delivered in March 2009, those guidelines were not of retrospective effect.

     These offences - that is, the offences in Counts 1 and 2 - having been committed before that judgment, are not subject to the new guideline.

     It is a factor of aggravation in respect of the circumstances of the commission of the offences alleged in Counts 1 and 2 that you were importing the cocaine stipulated in the respective counts into Hong Kong from abroad.  Each of you had gone to a great deal of trouble in order to import the drugs.  You had travelled halfway round the world to do so; that is to say from Hong Kong to South America and back via South Africa to Hong Kong.

      In respect of Count 1, Mr Wong Pak-yeung, having regard to the amount of cocaine, namely 798.79 grammes, and the factor of aggravation of importation, I take a starting point for sentence of 22 years’ imprisonment.

     Turning then to Count 2, Mr Wong Yuen-man, having regard to the amount of cocaine stipulated in the particulars of offence, namely 1,580.79 grammes, and the factor of aggravation by way of importation, I take a starting point of 25 years’ imprisonment.

     Turning to Count 3, Mr Wong Yuen-man, in respect of the 4.93 grammes of cannabis in its herbal form found in your home, I accept your counsel’s submission that a fine is the appropriate form of sentence.

     Next I turn to the discount of sentence to be applied to the starting points taken.  In light of your pleas of guilty, you are each entitled to a discount of one-third of the sentence that would otherwise be appropriate.

     Turning then to the imposition of sentence itself, you, Wong Pak-yeung, are sentenced to 14 years and 8 months’ imprisonment in respect of Count 1.

     You, Wong Yuen-man, are sentenced to 16 years and 8 months’ imprisonment in respect of Count 2.

     In respect of Count 3, a fine of $2,000 is imposed.  As required by section 113(3) of the Criminal Procedure Ordinance, the court fixes a term of 7 days’ imprisonment that you are to serve in default of payment of that sum of money.  If it is necessary for that order to come into effect, the term of imprisonment is to be consecutive to the term of 16 years and 8 months.  However, you have indicated through your counsel that the fine is to be met from the moneys seized from you on your arrest.