HKSAR v. Chiang Yiu on, Marco

HCCC 99/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 99 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 his own plea on one charge of trafficking in a dangerous drug. The guilty plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 6 March 2015.

The Particulars of Offence provide that on 9 September 2014, at the Hong Kong International Airport, Chek Lap Kok, Lantau Island, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 299 grammes of a powder and 1,702 grammes of a crystalline solid containing 1,895 grammes of methamphetamine hydrochloride, commonly known as the “Ice” drug.

The Summary of Facts which has been admitted by the defendant provides, inter alia, that on 9 September 2014, officers of the Narcotics Bureau mounted an anti-narcotics operation at the Departure Hall of the Hong Kong International Airport.

At 0815 hours, PW1 observed the defendant walking from the Departure Hall towards Boarding Gate number 21, where he was scheduled to take a CX flight 139 bound for Sydney, Australia. The defendant appeared to be behaving furtively and was intercepted by PW1 who revealed his police identity and requested a search.

The search was conducted at the disabled persons toilet near Boarding Gate number 25. The result of the search was that a total of four plastic bags of dangerous drug were found strapped on the defendant’s thighs, front abdomen and back waist by adhesive tapes and bandages.

The defendant was arrested and cautioned for trafficking in a dangerous drug. In reply, the defendant stated, “Sir, I received $60,000 from someone for carrying the dangerous drugs to Australia only because I am in debt”.

Apart from the dangerous drug and adhesive tapes and bandages used to tie up the drugs, the following items were also seized as exhibits from the defendant:

(1) Cash of HK$1,421.

(2) AU$1,735

(3) Two mobile phones.

(4) Three SIM cards.

(5) One receipt issued by Wing On Travel.

(6) One boarding pass for flight CX 139.

(7) One Travelex transaction receipt.

The defendant was later escorted to the Police Headquarters at Wan Chai for further inquiries.

The defendant was interviewed under caution on video on 9 September 2014 and stated, inter alia, the following:

(1) He became acquainted with a Chinese male called “Ah Cheong” at a bar in Tsim Sha Tsui in July 2014.

(2) At the end of July 2014, during a conversation with Ah Cheong, he disclosed that he owed a debt of HK$70,000 to a financial company. Ah Cheong then offered him the opportunity to traffic in dangerous drugs to earn money.

(3) About two weeks later, he promised Ah Cheong to deliver dangerous drugs “Ice” to Australia. Ah Cheong offered him an initial payment of HK$20,000 and would pay him the remaining HK$40,000 when the delivery was completed.

(4) The dangerous drug in question was placed on the defendant’s body by two male persons in a hotel room in Shenzhen on 9 September 2014. On the same day, the defendant went to the Hong Kong Airport via the Huanggang Port.

(5) Upon arrival at the Hong Kong Airport he exchanged about HK$10,500 into AU$1,300 at a money changer. There was about HK$500 left. All the money was provided by the two males.

(6) During the video-recorded interview the defendant was shown the drug-related exhibits. He acknowledged all the exhibits, including four packets of dangerous drugs, underpants, bandages and adhesive tapes removed from him.

(7) For the AU$1,735, the defendant remembered that AU$1,300 were exchanged at the Hong Kong Airport, and he believed that the remaining AU$435 were given by the male on the Mainland, though he did not check the exact amount of money given by the said male.

(8) For the amount of HK$1,421 the defendant claimed that it was his savings from a previous part-time tutorial job.

(9) A Samsung phone and two SIM cards seized from him were used to communicate with friends and family.

(10) The Nokia mobile phone and China Mobile SIM card were given by the male in China.

(11) The defendant further explained that Ah Cheong did not tell him how to collect the remaining HK$40,000 reward. Ah Cheong only asked the defendant to contact him when he returned to Hong Kong after the trip.

The dangerous drug was examined by the Government Chemist and found to consist of 299 grammes of a powder and 1,702 grammes of a crystalline solid containing 1,895 grammes of methamphetamine hydrochloride.

The street value of the dangerous drug was estimated at $804,402.

By way of personal background, the defendant is 22 years of age. He was born in Hong Kong in March 1993. The defendant was a student studying for a University diploma at the time of his arrest. He had previously worked as a financial agent.

The defendant is single, and prior to his arrest resided with his mother and younger sister. The defendant does not have any previous criminal conviction.

In mitigation, Mr Richard Donald, on behalf of the defendant, submitted that the defendant is remorseful. Mr Donald further urged upon the court to take into account the defendant’s early plea of guilty, which he realistically accepts is the main mitigating factor in this case.

Mr Donald has also submitted a helpful written note on mitigation, which succinctly summarised the background of the defendant and the financial difficulty that he was facing, which had led to his commission of the present offence.

Mitigation letters from the defendant’s mother and younger sister have been handed up to the court.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant would offer little mitigation in a serious case of drug trafficking, which warrants a severe deterrent sentence to protect the public.

The dangerous drug involved in the present case is 299 grammes of a powder and 1,702 grammes of a crystalline solid containing 1,895 grammes of methamphetamine hydrochloride.

The offence was committed on 9 September 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 1,200 to 4,000 grammes of heroin, the guideline starting point after trial should be 23 to 26 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (1,895 grammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 23 years and 8 months’ imprisonment.

The defendant was caught trying to bring the drug in question from Hong Kong to Australia. The initial starting point of 23 years and 8 months’ 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 25 years and 8 months’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea, which was entered at the firstopportunity at the Magistrates’ Court.

The defendant is accordingly sentenced to 17 years’ imprisonment.