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DCCC 777/2019
[2019] HKDC 1597
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 777 OF 2019
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| Present: |
Mr Brian Chan, Counsel on fiat, for HKSAR |
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Ms Karen Lau instructed by Messrs. Louis K.Y.Pau & Co. for the defendant. |
| Offence: |
[1] Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港) |
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[2] Trafficking in a dangerous drugs (販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant, an illegal immigrant from the Mainland, admitted to drug trafficking – 174.41g of a powder containing 2.89g of nimetazepam, 0.86g of para-methoxymethamphetamine and 21.66g of 3,4-methylenedioxymethamphetamine (commonly known as Ecstasy).
2. On the night of 17 April 2019, customs officers stopped the defendant on the footbridge at Tin Wan Praya Road, Aberdeen and discovered the drugs in this case, which were put in 152 plastic packets, in a paper bag he was carrying.
3. The street value of the drugs in question is estimated to be between $35,776 and $46,696.
4. The defendant told the customs officers that initially he planned to come to Hong Kong to work to earn some money, but his application for a two-way permit was rejected, so he chose to sneak in by sea through a snakehead about a week before.
5. Subsequently, the defendant was charged with two counts of offence to which he pleaded guilty, namely:
Charge 1: - Unlawful remaining[1];
Charge 2: - Drug trafficking[2].
6. The defendant (28), a married man with two children - a son (5 months only) and a daughter (3), is a person of clean record. His father (61), a cook, is running a food stall in the Mainland and the defendant is helping in his father’s business.
7. The court heard that whilst working at his father’s stall, the defendant came across a customer who suggested to him to come to work in Hong Kong for big money, i.e. to deliver drugs to Hong Kong for reward.
8. Not being able to resist the temptation, the defendant agreed to it, so arrangement was made for him to come to Hong Kong so that he could deliver the drugs in this case to another and he would be paid $500.
9. In mitigation, counsel for the defendant, Miss Karen Lau, said that the defendant had underestimated the consequences of his action, but having been arrested, he now realized the seriousness of the offences. He is very worried about his family and in particular his pregnant wife and he feels guilty for not being able to be present at the moment of his son’s birth.
10. On the positive side, the defendant is grateful for his family who has shown full support for him and even encourages him to become a better person, counsel said. All that he wants now is to return to the Mainland as soon as possible and to compensate his family and shoulder the responsibility of a father, a husband and a son by taking care of his family.
11. There are three types of drugs involved in the instant case, but given the small quantity of the other two types compared to Ecstasy, i.e. nimetazepam and para-methoxymethamphetamine, I would simply focus on Ecstasy when it comes to sentencing.
12. The guidelines for trafficking in Ecstasy are trafficking between 10g and 50g, 4 to 6 years. I would take 4 ½ years as the starting point for the amount (21.66g), and reduce it to 3 years for his timely plea.
13. Insofar as the illegal remaining charge is concerned, unless there are humanitarian grounds, the guidelines are 15 months’ imprisonment after a plea of guilty, so the defendant is sentenced to 15 months for charge 1.
14. Faced with two charges, Miss Lau asked this court to take into account the totality principle and adopt a partially consecutive sentence approach.
15. The Appellate Courts have repeatedly said, “If a defendant, having entered and remained in Hong Kong illegally, commits another offence, the sentence for the unlawful remaining charge should run consecutively to the sentence for the other offence. The offences are separate and distinct.” (See Tong Fuk Sing[1999] 3 HKC 332)
16. The higher court in Tong’s case reiterated that “Where Court of Appeal has laid down guidance for sentence, it is not sufficient for sentencing judge merely to pay lip service to it before departing from it -sound reasons for such departure should be given.” And I find no good reasons for so doing in the instant case.
17. For the above reasons, I order that the terms of charges 1 and 2 be run consecutively to each other, the total term is one of 4 years and 3 months.
[1] Contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115
[2] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance 134
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