HKSAR v. Chan Yik Tung

HCCC 71/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 71 OF 2015

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

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COURT: The defendant has been convicted on her own plea of one

charge of trafficking in a dangerous drug. The plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 6 February 2015.

The Particulars of Offence provide that on 28 August 2014 at the Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely, 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride, commonly known as “Ice”.

The Summary of Facts which has been admitted by the defendant provides as follows, which I shall quote in full:

“1. On 28 August 2014, police officers conducted an anti-dangerousdrugs operation at the Hong Kong International Airport. At around 7.40 am, the 22-year-old female defendant appeared at Zone E of the Departure Hall with a suitcase.

2. At around 7.58 am, a male approached the defendant and gave her an envelope.  This male then walked away and joined another male.

3. At around 8.30 am, the defendant approached the counters at Zone E with her suitcase to check in for a flight to Japan.  She was intercepted.

4. A search of the inner compartment of her suitcase produced nine plastic bags containing a total of nine plastic bags of suspected dangerous drugs.

5. The suspected dangerous drugs were confirmed to be a total of 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride.

6. She was arrested and cautioned, after which she said that she got $50,000 from somebody to carry the dangerous drug “Ice” to Japan.

7. In a video recorded interview, the defendant said under caution, inter alia, that:

(a) About 2 weeks ago, she became acquainted with a male named Ah Tso through a friend.

(b) Ah Tso subsequently asked her if she would want to travel and make money. The defendant who was in need of money accepted the offer.

(c) Ah Tso instructed the defendant to rent a hotel room at the Royal View Hotel and to place a suitcase in the hotel room. The defendant did as told.

(d) The defendant also booked a packaged tour trip to Japan with Sunflower Travel Agency as instructed by Ah Tso, who provided her with the money for booking this trip.

(e) The defendant later received a phone call instructing her to go to Yuen Long. Ah Tso drove her to the car park at Sun Kong Hotel in Yuen Long, where they collected a bag of hard stuff. After that, Ah Tso drove her to the Royal View Hotel. The defendant placed this bag of hard stuff into the suitcase, which she had previously put in the hotel room.

(f) The defendant subsequently retrieved the suitcase from the hotel room and delivered this suitcase to a flat in Cheong Wah Building.

(g) The packaged tour trip which she had booked was cancelled. As a result, the defendant and Ah Tso booked a tour trip to Tokyo, Japan, with another travel agency, EGL, in Tsuen Wan.

(h) On 28 August 2014 at around 6 am, the defendant received a phone call from an unknown male who told her to go to the flat in Cheong Wah Building to collect the suitcase.

(i) After collecting the suitcase, which she believed was containing some dangerous drugs, she took a taxi to the airport.

(j) She arrived at the airport with the suitcase and saw Ah Tso who was with an unknown male. Ah Tso gave her some items, including her passport, which she had previously given to Ah Tso, and documents issued by the travel agency. Ah Tso and the other male were standing nearby while she was checking in for her flight. The defendant was then arrested.

(k) She had received $10,000 from Ah Tso out of the promised reward of $50,000.

(l) With the money that she had received, she had spent around $200 for travelling and converted $4,500 into Japanese Yen.

8. In August 2014, the estimated retail value of the seized dangerous drug was HK$1,750,860.

9. The defendant now admits and accepts that she was trafficking in the seized dangerous drug.”

By way of personal background, the defendant is 23 years of age. She was born in Hong Kong in September 1991. She is single. She has completed education up to Form 3 level. Thereafter, she has completed various courses at the Hong Kong Institute of Vocational Education. The defendant had worked as a clerk, as a salesperson and also in restaurants. She has been unemployed since March 2014.

Prior to her arrest, the defendant lived with her boyfriend. Her father is 66 years old and has suffered a stroke in 2004. Her mother is 42 years old. The defendant has two brothers.

The defendant does not have any previous criminal conviction.

In mitigation, Miss Susanna Ku, on behalf of the defendant urged upon the court to take into account her guilty plea and her assistance to the police. I shall come to that in a moment.

I was told that the defendant committed the present offence out of stupidity and financial difficulties.

Four mitigation letters were handed up from the defendant, the defendant’s father and the defendant’s brothers respectively.

However, it should be pointed out that personal circumstances of the defendant offer little mitigation in what is a very serious drug offence.

The dangerous drug involved in the present case is 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride. The offence was committed on 28 August 2014, ie after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the “Ice” drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the “Ice” drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 4,000 to 15,000 grammes of heroin, the guideline starting point after trial should be 26 to 30 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (4.02 kilogrammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 26 years’ imprisonment.

The defendant was caught trying to bring the drug in question from Hong Kong to Japan.

The initial starting point of 26 years’ imprisonment should be enhanced by 2 years for the international element in the present case [see:HKSAR v Abdallah (supra) at paragraphs 42 and 43].

This would take the starting point up to 28 years’ imprisonment.

I shall give the defendant a full one-third discount for her guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.

Further, there are special circumstance on the papers which justify a lenient view to be taken of the facts. This relates to the assistance given by the defendant, which resulted in the successful prosecution of her accomplice, namely, “Ah Tso” referred to in the Summary of Facts. The full name of Ah Tso is Yau Kwok-yin (“Yau”).

Details of the assistance given by the defendant have been confirmed by the prosecution in a letter dated 29 June 2015, which included:

(1) The defendant gave a non-prejudicial statement on 28 August 2014, in which she revealed the involvement of a person who had instructed her to commit the present case.

(2) On 29 August 2014, the defendant positively identified Yau at an identification parade and confirmed that he was the person who had instructed her to commit this case.

(3) The prosecution case against Yau depended on the defendant’s non-prejudicial statement and her identification evidence of Yau.

(4) The version given by the defendant is consistent with other evidence, including call records (which revealed there were previous telephone contact between her and Yau), Yau’s presence at the airport and mobile phone messages sent between the defendant and Yau.

(5) On 11 February 2015, the defendant’s non-prejudicial statement was served on Yau.

(6) On 8 May 2015, Yau pleaded guilty on return date at the Eastern Magistracy. His case was committed to the High Court for sentence (HCCC 187/2015).

(7) In HCCC 187/2015, Yau pleaded guilty to the sole charge of trafficking in a dangerous drug, namely, the same 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride.

In short, the defendant is someone who has pleaded guilty, implicated her accomplice, provided a useful witness statement and was prepared to give evidence in the latter’s trial.

In such circumstances, I am prepared to give the defendant a total discount of 43 per cent from the starting point of 28 years’ imprisonment [see:HKSAR v Tsoi Sin Yee, CACC 27/2014 (Judgment of the Court of Appeal dated 15 July 2014), paragraphs 14 to 19 and 32].

Defendant, please stand up.

The defendant is accordingly sentenced to 15 years and 11 months’ imprisonment.