HKSAR v. HO PAK LUN AND ANOTHER

DCCC1018/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1018 OF 2010

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Reasons for Sentence

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1.  Ho Pak-lun and Mak Ho-man, you have each been convicted on your own pleas of the offence of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  Acting on information, police officers intercepted you at a restaurant inside the restricted area at Hong Kong Airport shortly after 8.30 pm on 8 July this year.  Each of you were found to have what were believed by the police at the time to be substantial quantities of dangerous drugs strapped to your bodies.  Five packets were strapped to each of your trunks, two packets to your thighs, and two packets to your calves. You were in possession of E-tickets and boarding passes for a Cathay Pacific flight from Hong Kong to Sydney.  You had not checked in for these flights in Hong Kong but had travelled from Macau by ferry and proceeded directly into the restricted area in Hong Kong.

3.  The account given by each of you was broadly similar.  A friend or acquaintance had offered each of you a job to deliver drugs to Australia.  You, Ho Pak-lun, claimed you were offered $50,000.  You, Mak Ho-man, claimed you were offered $20,000.  You had each eventually travelled from Hong Kong to Macau where you were met and taken to a hotel where later someone had strapped the powder to your bodies while you were blindfolded.  You were later given E‑tickets and boarding passes and you took the ferry to Hong Kong International Airport where you were apprehended.

4.  You have both admitted now that you believed that you were carrying dangerous drugs although you claim that you were unaware of what kind of dangerous drug was involved.  Very fortunately for you, the powder strapped to your bodies was not a dangerous drug because on analysis, it was found to be a powder containing methylephedrine which is not in itself a dangerous drug.

5.  You, Ho Pak-lun, were carrying 2,980.06 grammes of this powder.  You, Mak Ho-man, were carrying slightly more than 3,001.09 grammes of the powder.  Although not in itself a dangerous drug, methylephedrine can be used to manufacture N,N‑dimethylamphetamine (NNDMA). Each of you was carrying sufficient methylephedrine to manufacture about 2 and a quarter kilograms of NNDMA.  If the substance you were carrying had turned out to be NNDMA or an even more dangerous drug, you would have been facing very many years’ imprisonment.  As it is, the offence you have committed is still very serious.  It is an offence that carries a maximum penalty of life imprisonment.

6.  I have listened to all that has been said on your behalf by Mr Poon and also the letters from yourselves and the letter from your (Ho Pak-lun’s) former teacher, Miss Lee.  Despite the difference in age between you and the fact that you, Ho Pak‑lun, have no previous convictions, this is not a case in which I consider it appropriate to distinguish between you in terms of sentence.  The difference in weight of the powder you were carrying was very slight and fortuitous.  Although the younger of the two, you, Ho Pak-lun, were old enough to realise you were engaged in a very serious offence.  A drug offence of this sort is one where the absence of previous convictions is a matter of very limited significance.  In any event, the previous convictions of Mak Ho-man are not related to drugs.

7.  I have taken into account what was said by the Court of Appeal in the case of Attorney General v Ye Wing Leung CA 159 of 1997 and have concluded that the appropriate starting point in each of your cases is 5 years’ imprisonment.  You have each pleaded guilty and are entitled to the usual discount of one-third.  As a result, the sentence I pass on each of you is one of 40 months’ imprisonment, in other words, 3 years 4 months’ imprisonment.

8.  In the case of you, Mak Ho-man, that sentence is to run consecutively to the sentence of 4 months’ imprisonment you are now serving.

9.  An aspect of this matter that has caused me concern is whether there are any security implications in the use of Macau as a location for checking in on a Cathay Pacific flight from Hong Kong to Australia.  The prosecution have informed me that they are unaware whether the defendants would have undergone any body check in Macau.  I have been told by the prosecution that the defendants would not have been subject to any automatic body check in Hong Kong before they took the flight to Sydney. Were they subject to body screening in Macau, and if so, how did this powder attached to their bodies escape detection during that screening?  A matter of obvious concern is whether they would have been detected if, instead of methylephedrine, they had been carrying high explosive?

10.  In addition, on the basis of what I have been told by defence counsel, someone else in their absence was able to check in for them in Macau on a Cathay Pacific flight from Hong Kong to Australia and then simply hand them boarding cards later.  If this is true, I do not know what security implications, if any, that might have.  I accept that it may be that in these days of online check-in, it does not have any particular significance.  However, I would like these matters brought to the attention of those responsible for airline security in Hong Kong and indeed Cathay Pacific Airways, and if necessary, investigated.  I would appreciate being informed of the result.