HKSAR v. Sivanason Sivanathan

HCCC 313/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 313 OF 2014

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 15 February 2014, at the Hong Kong International Airport, Chek Lap Kok, you unlawfully trafficked in 4.92 kilogrammes of a crystalline solid containing 4.87 kilogrammes of methamphetamine hydrochloride, otherwise commonly known as “Ice”.

On 15 February, at about 8 am, you were intercepted at the counter of the TigerAir airline, at the Departure Hall of the Airport when you were about to check in for a flight to Clark in the Philippines.

You as well as the baggage you were pushing were taken away to be searched. The drugs, as mentioned in the charge were found in your suitcase in a concealed compartment. They were contained in seven bags. The estimated retail value was $2,199,240.

When you were interviewed, you told them that a person in Malaysia had offered you a job in Hong Kong. You therefore came to Hong Kong, thinking that you were going to be employed. However, when you arrived in Hong Kong, you were taken to China, falsely being told you were going to go there for a job interview. When you were in China, you were given this suitcase, and you then brought this suitcase back to Hong Kong, and were going to take an onward flight to the Philippines.

In the interview itself, you, in fact, denied knowledge of the drugs, but through your plea of guilty and what your counsel Mr Neil Mitchell had said in mitigation, you knew that what was contained in the suitcase was drugs.

Mr Mitchell has mitigated in his usual thoroughness for and on your behalf. You are a Malaysian citizen, aged 30, and have no previous convictions in Hong Kong. You live with your parents in Malaysia. Your father is aged 64 and your mother 62. At the time of your arrest, you worked in textiles, trading in textiles, and previous to that, you worked as a bank clerk.

As is usually the case with this type of offence and people like yourself being involved, it was the financial constraints that you felt in Malaysia that led you into the commission of this offence.

Mr Mitchell had correctly pointed to the guideline case for trafficking in the drug “Ice”, and that is the AG v Ching Kwok Hung [1991] 2 HKLR 125.

He has quite properly pointed out that save for your guilty plea, there are no further extenuating mitigating circumstances. You will, of course, be given the usual full one-third discount for your plea of guilty.

The Court of Appeal in June 2014 handed down a decision giving guideline sentences for trafficking in “Ice” in the case of HKSAR v Tam Yi Chun. However, those guidelines are not applicable in this case as this case and your offence was committed before those guidelines were laid down.

Nevertheless, in that case, Stock VP correctly stated that the Abdallah guidelines did not apply to trafficking in very large quantities of “Ice”, and a slightly lower tariff was applicable at that level. I draw a reference from the case of HKSAR v Nkosi Xolile Rose CACC 331/2013, where the Court of Appeal there considered sentencing in respect of trafficking in large quantities of “Ice”, and in that case, the court also had regard to the case of Tam Yi Chun. The court in that case sentenced the accused to 24 years’ imprisonment as a starting point, for 3.3 kilogrammes of “Ice”.

The court also referred to another case of HKSAR v Hendrik Wijaya Oei CACC 93/2008, where an international national was on transit from Shenzhen to Jakarta, and he was found to have 3.93 kilogrammes of “Ice” in his luggage. He was convicted after trial and sentenced to 24 years’ imprisonment.

The Abdallah guidelines are such that quantities between 4,000 and 15,000 grammes, a starting point of 26 to 30 years’ imprisonment would be appropriate. As these guidelines are not applicable, a lower starting point should be taken than that as stated in Abdallah.

The amount of drugs that you had been trafficking in was an amount of 4,870 grammes, or 4.87 kilogrammes of “Ice”. That is approximately seven times over the 600 grammes maximum of 18 years as mentioned in Ching Kwok Hung.

Given the quantity of “Ice” that you were trafficking in, had you been convicted after trial, I would have taken a sentencing starting point of 24 years’ imprisonment. As you were at the Hong Kong International Airport, leaving Hong Kong, intending to go to the Philippines, there is, of course, an international element involved, and that, as stated in Abdallah, is an aggravating factor, such that would enhance the starting point. For this amount of drugs, the defendant, I enhance that starting point by 2 years, and therefore the sentencing point for this offence is one of 26 years’ imprisonment.

Defendant, you pleaded guilty, and the full one-third discount should be given. In the circumstances, the resulting sentence is one of 17 years and 4 months’ imprisonment, to which you shall so serve.