HKSAR v. SZE TO TSZ FUNG

HCCC 436/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 436 OF 2014

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REASONS FOR SENTENCE

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1.  In consequence of the defendant’s guilty plea to a charge of trafficking in dangerous drugs in the Magistrate’s Court on 10 October 2014, he was committed to the High Court for sentence. On 29 December 2014, counsel for the defendant requested that the case be adjourned to 18 February 2015 in order to obtain a psychological report of the defendant.

2.  The facts agreed upon his plea of guilty were as follows.  At about 8.23 am on 11 May 2014 police officers intercepted the defendant who was then aged 22 together with another male at the Departure Hall of the Hong Kong International Airport.  The defendant was carrying a black suitcase at the time.  The police carried out a search of the defendant's suitcase and found concealed inside the edges of the suitcase 14 plastic bags containing a total of 2.05 kg containing 2.02 kg of methamphetamine hydrochloride commonly known as ICE.  The street value of the drugs was estimated at $865,100.

3.  The defendant was arrested and after being cautioned said: “Ah Sir, these dangerous drugs are for me to carry to Japan for someone”.  Also found on the defendant were $10,000 cash in Hong Kong currency, two mobile phones, a receipt from Hong Kong Tai Travel Agency made out to the defendant dated 5 May 2014 for payment of a deposit of $6,000 for a five day tour to Japan departing on 11 May 2014 on Japan Airlines and the defendant’s passport.

4.  The other male with the defendant was also searched by the police.  They found on him two receipts from Regal Airport Hotel made out to the defendant for the payment of $1,188 for Room 8147 on 8 May 2014 and payment of $3,146 for a further two nights at the room for 9 and 10 May 2014.

5.  In subsequent video recorded interviews, the defendant admitted that he was carrying the drugs for Ah Lung to Japan for a reward of $25,000 which he would receive on his return to Hong Kong.  He claimed he did this because he needed the money as he owed $42,000 to a loan shark company.  He acknowledged that he knew he would be carrying dangerous drugs for Ah Lung.

6.  In order to carry out this delivery the defendant was given $8,700 to join a five day group tour to Japan.  He booked the tour through Hong Tai Travel Agency in Mongkok.  Two days later he received a phone call and was instructed to go to the lobby of the Panda Hotel.  He went there and met a man who gave him $600 to rent a hotel room there.  After doing so, another man with the nickname Sze Fu came to the hotel room with a suitcase.  Sze Fu opened the suitcase and inside it was a quantity of ICE.  Sze Fu then packed the drugs in the sides of the suitcase which took him about 4 to 5 hours to do.  He then left.

7.  The defendant stayed in the hotel room for the night.  The next day he received a phone call and he was instructed to go to the Regal Airport Hotel where he would be given money to rent a room.  He then went to the Regal Airport Hotel taking the suitcase with him where he met a man who gave him $1,200 to rent a room for one night.  The next day he received another phone call and he was instructed to collect $3,000 from a man to extend his stay in the hotel for two more nights.  On 11 May 2014, he left the hotel with the suitcase and went to the airport.  On arriving at the airport he received a phone call from a man who instructed him to meet at the toilet near Manning Pharmacy located in the Departure Hall where he was given $10,000 as spending money for his trip to Japan.  He then proceeded to check in for his flight at which time he was intercepted by the police.

8.  The defendant claimed that the other man who was arrested with him had only accompanied him to stay at the Hotel as he did not want to be alone.  It appears this was accepted by the police as the other man has not been charged.  Notwithstanding the defendant’s claim about the other man, this aspect of the case warrants further and detailed investigation.

9.  Whilst the defendant has not identified the other people involved, he has given a fairly full account of his involvement in this very serious crime.  He is a young man who is 22 years old and has a clear record.  I have been provided with very little background information about him, other than he worked as a transportation worker at the time of his arrest and that he lived with his mother and two sisters at the Shek Lei Estate, Kwai Chung, New Territories.  A psychological report of the defendant has been submitted to assist the court in assessing the personal circumstances and background of the defendant.  He was assessed to be functioning within the high-end of the range of Mild Grade Mental Retardation.  It was explained that he needed support in various adaptive functioning aspects but that his reasoning and anticipation of the consequences of his actions was close to that of the normal population and that his mental disability was unnoticeable in his day-to-day interactions.  The clinical psychologist was of the opinion that he showed no insight into his intellectual limitation and he was found to be poor in social judgement and problem solving.  He generally explained that he was immature, irresponsible, self-indulgent, gullible and susceptible to undesirable peer influence.  He found that the defendant showed a clear understanding of his actions and the legal consequences of them and he was assessed as having a criminal attitude.  It was recommended that psychological treatment focus on his substance abuse, problem solving abilities and criminal attitude.  Overall, it would appear that the defendant while of limited intelligence displayed an immature and irresponsible attitude with a criminal attitude as well. 

10.  I have been provided with letters from the defendant and family members explaining the background and the circumstances of the defendant.  He is a young man of limited intellectual ability and has a simple outlook on life which is a reflection of his immaturity.  His family have rallied behind him and it would appear that he is well liked by his family and friends.  He has expressed regret for what he has done and wishes to rehabilitate himself.  From the information and material before me, he appears to be genuine in his desire to correct his ways.  I will bear this in mind.

11.  I have also borne in mind the age of the defendant and his clear record together with his readiness to acknowledge his wrongdoing and provide a relatively full account of his involvement in this crime.  

12.  The Court of Appeal recently in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of ICE as contained in AG v Ching Kwong Hung [1991] 2 HKLR 125.  This decision was handed down on 9 June 2014.  The offence in this case took place on 11 May 2014, nearly a month before the decision of the Court of Appeal.  The long‑standing principle is that when the Court of Appeal issues new sentencing guidelines they apply immediately to those persons who commit the relevant offence thereafter.  The new sentencing guidelines are operative from the date of the offence, not from the date of sentencing.

13.  According to the tariff case of Ching Kwok Hung the tariff applicable for trafficking in ICE of over 600 g a sentence should range from 18 years upwards.  I note that the facts and circumstances of the case under consideration in Tam Yi Chun were very similar to the present case.  In that case the accused was convicted of trafficking of ICE having arrived from mainland China bound for Japan where the quantity of drugs was 1916 g.  Even though the Court of Appeal fixed a new set of guidelines for trafficking in ICE, the accused was sentenced under the previous guideline case and substituted a sentence of 25 years with 24½ years’ imprisonment.  As there is in the present case, there was an international element for which the accused received an additional two years’ imprisonment to the starting point.  I mention this in passing and do not seek to be guided by a comparable decision but rather I will apply the relevant sentencing principles to the particular case before me. 

14.  I should add that tariff cases are exactly that, they provide a range of sentence that should be imposed largely based upon the quantity of the drugs being trafficked in order to maintain a consistent level of sentencing for offenders who traffick in dangerous drugs.  Sentencing is a complex field of law and there are many principles and factors that can and should be taken into account when deciding a sentence for an individual offender.  All relevant information helps the court in arriving at a just and appropriate sentence to punish the offender for the crime that he or she has committed.  Counsel should not shy away from this responsibility in the face of tariff cases and the court should be provided with as much information as can be reasonably submitted in order to have a full and accurate appreciation of the background of the offender and the circumstances that led him or her to commit the offence in question. 

15.  I have been assisted in arriving at a sentence by the information and material about the defendant and his personal circumstances and the circumstances leading him to commit this crime. 

16.  I impose a starting point of 21 years’ imprisonment which I enhance by one year for the international element involved in this case.  I have reduced the starting point to as low as I possibly can bearing in mind the mitigation, namely, his genuine expression of remorse, the relative young age of the defendant and his personal circumstances, in particular his low level of intelligence and susceptibility to be influenced by others.  The starting point is therefore 22 years’ imprisonment which I reduced by one third for the defendant’s guilty plea, making a sentence of 14 years and 8 months’ imprisonment.