HKSAR v. Chin Li Ying

HCCC 146/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 146 OF 2016

_______________

_______________

_____________________________

REASONS FOR SENTENCE

_____________________________

1.On 18 March 2016, the defendant pleaded guilty to the offence of trafficking in a dangerous drug at the earliest opportunity in committal proceedings at the Eastern Magistracy. She was committed for sentence to the Court of First Instance.

2.The particulars of the offence are that on 22 August 2015, at the Hong Kong International Airport, the defendant trafficked in a dangerous drug, namely, 2,157.8 g of a crystalline solid containing 2,077.1 g of methamphetamine hydrochloride, commonly known as Ice. 

3.The facts giving rise to the offence as agreed by the defendant can be briefly stated as follows.  At around 15:00 hours on 22 August 2015, Customs officers conducted a baggage check of luggage of a flight destined for Jakarta, Indonesia.  The Customs officers’ suspicion was aroused in relation to a suitcase that had been transited from a ferry from Jiuzhou which had been checked-in by the defendant.  The defendant prior to boarding the flight to Jakarta was intercepted by Customs officers.  She was searched and nothing suspicious was found.  She confirmed that the suitcase in question was hers and it was searched in her presence.  Upon it being opened, it was found to contain two chocolate boxes each containing one tinfoil bag, one tea can containing two tinfoil bags and three tea cans each containing one tinfoil bag.  The seven tinfoil bags contained what was later confirmed to be the quantity of Ice as charged.  The defendant was arrested and cautioned and in response she acknowledged that the substance was Ice and that it had been given to her by a man in Zhuhai.  The man told her to take a ferry from Jiuzhou to Hong Kong International Airport and to board a flight to Jakarta.  She was promised $3,000 Malaysian as a reward.  Also found on the defendant were two Nokia mobile phones, RMB 1,570.4 and HK $79.2. 

4.In a subsequent record of interview, the defendant stated that she lived in Kepong, Kuala Lumpur with her husband and two-year old daughter; that she was recruited by an unknown person in Kuala Lumpur to travel to Macau to bring some drugs to Jakarta; that the person arranged for the air tickets of her trips and that she was given RMB 2,500 for her expenses; that she had been told that the drugs would be concealed in packaging as food stuff; that on 20 August 2015, she travelled from Kuala Lumpur to Macau and as instructed went to Zhuhai and stayed there for two nights; that on 22 August 2015, an unknown person called her and asked her to go to a location near the hotel where she was staying to retrieve a recycled bag containing chocolate boxes and tea boxes; that she packed the boxes in the suitcase and took a ferry from Jiuzhou to Hong Kong International Airport; that she knew the boxes concealed drugs, namely Ice; and that she was promised a reward of $3,000 Malaysian when she returned to Kuala Lumpur.

5.The street value of the drugs seized at the time of the offence was HK $709,916.20. 

6.In mitigation, a letter has been submitted to me from the defendant in which she has expressed her deep regret for what she has done and claims she only got involved in this crime out of desperation because of the financial hardship she was experiencing in supporting her family. 

7.Ms Catherine Wong, counsel for the defendant, has helpfully set out in some detail the background of the defendant and the circumstances that led her into committing this crime. 

8.The defendant is 22 years of age.  She was born in Malaysia where she received secondary school education.  After leaving school she worked as an office assistant.  She got married when she was 19 years old and soon after gave birth to a daughter.  At the time of the offence she was 3 months pregnant expecting her second child.  It appears her husband was not financially supportive or caring and it fell upon her to look after the family and an elderly mother.  Since her arrest for this offence she has given birth to a second daughter whilst detained in a correctional institution.

9.Ms Wong explained that the defendant got involved to deliver the drugs in order to earn some quick money.  She noted that the defendant was a person with no prior criminal record or involvement with drugs.  She further explained that the defendant realises the stupidity of what she has done and, whilst it is no excuse, she did it in order to support her family.  She submitted that the defendant was a mere courier who had been preyed upon by members of a drug syndicate and that she followed the instructions given to her.

10.It has to be acknowledged that the defendant as soon as she was apprehended admitted her wrongdoing and involvement in this offence.  She gave a full and frank account of the events leading up to and including the bringing of the drugs to Hong Kong for onward transmission to Indonesia.  I will bear in mind her personal circumstances and the role that she played in this offence. 

11.Where it can be shown that someone is a mere courier of the drugs who has no past history or involvement with drugs or the drug trade and has been preyed upon by members of a drug syndicate because of his or her particular circumstances and his or her involvement in the offence is completely out of character, then this may be a relevant consideration in determining the role that the person has played in trafficking the drugs.  Of course the role that a person has played will be ultimately determined by taking into account all the facts and circumstances, in particular, the nature and degree of involvement of the defendant in transporting the drugs.  It must not be overlooked that in the seminal case on sentencing for drug trafficking, R v Lau Tak-ming [1990] 2 HKLR 370, the Court of Appeal emphasised that in the suggested bands there were factors that a sentencing judge could properly take into account which may warrant an adjustment upwards or downwards to the suggested tariff.  One of the factors that the Court of Appeal, at 386E to G, mentioned is the degree of involvement of the offender.  This is not to suggest a departure from adhering to the tariff guidelines but to acknowledge that within a suggested band some adjustment may be appropriate in accordance with sentencing principles.

12.I should add that drug trafficking tariff cases provide a range of sentence that should be imposed largely based upon the quantity of the drugs being trafficked in order to maintain a consistent level of sentencing for offenders who traffick in the type of drug under consideration.  The quantity of the drugs is a key consideration because it is determinative of the potential harm to individuals and society in general.

13.Sentencing is a complex field of law and there are many principles and factors that can and should be taken into account when deciding a sentence for an individual offender.  All relevant information helps the court in arriving at a just and appropriate sentence to punish the offender for the crime that he or she has committed.  Hence, the court should be provided with as much information as can reasonably be submitted in order to have a full and accurate appreciation of the background of the offender and the circumstances that led him or her to commit the offence in question.

14.In the present case, the nature and degree of the involvement of the defendant in transporting the drugs was considerable. She travelled to Macau and then arranged to go to Zhuhai to pick up the drugs which she packed in a suitcase and brought to Hong Kong for an outward flight to Indonesia.  She had an involved and continuous role in the transportation of the drugs from mainland China to its ultimate destination Indonesia. 

15.The defendant is currently looking after her child whilst in custody.  Under the Prison Rules, Cap 234A, the defendant is entitled to keep her child in her custodial setting until the child reaches the age of 9 months and thereafter she can apply to keep her child with her until the age of 3 years.  Because of the defendant’s current circumstances, with a husband who seems to have now deserted her, she is anxious about the future of her newborn child.  What family that she has, reside in Malaysia where her elder child is currently under the care of her mother-in-law. 

16.Ms Wong asks for a lenient sentence in light of the defendant’s background and the circumstances that she is in of taking care of a child in custody.  She submits that the defendant will experience extreme hardship and difficulties in caring for her child in custody and especially in light of the fact that she will eventually have to send her child to Malaysia to be looked after by family there.  This she argues will result in the defendant being treated more harshly than a local person in the same circumstances.  It is well established that family circumstances can play virtually little if any part in mitigation in drug trafficking offences because of the grievousness of the offence.  The nature of the trafficking and the amount of drugs involved puts this case in the very serious category.  However, the court can take into account circumstances that may harshly and disproportionately impact on the defendant so that a degree of leniency is given to meet the justice of the situation.  This is sometimes described as an act of mercy to address certain circumstances by providing a modest reduction in the sentence to be given.  See HKSAR v BUSTILLO Vergara Catherine, HCCC 391/2015, 22 December 2015, unreported, at §10.  

17.I have been assisted in arriving at a sentence by the information and material in relation to the defendant’s background and the circumstances of her involvement in this crime, and the current circumstances that she is in having given birth to a child while in custody.  I do accept this was a one-off involvement by the defendant to act as a courier and that she had no past history or involvement with drugs or the drug trade.  When she was confronted about the drugs, she readily admitted her involvement and gave a full explanation to the authorities. 

18.The tariff guideline for trafficking in this quantity of Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. It fixes a tariff for a narcotic content of over 600 g of Ice of 18 years’ imprisonment and upwards and further provides that for very large quantities of over 600 g the principles laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 should apply.  So far as material, it fixes a tariff guideline for 1,200 to 4,000 g of 23 to 26 years’ imprisonment. 

19.Based on the narcotic content of the drug in the present case, namely, 2,077.1 g, a starting point, according to the tariff guideline, of 23 years and 6 months’ imprisonment would be imposed.

20.There is the aggravating factor of an international element to this offence, in that the defendant brought the drugs into Hong Kong from mainland China for onward transmission to Indonesia, and therefore according to the authority of Abdallah this warrants an enhancement of the sentence.  The level of enhancement for an international element should not be less than 2 years’ imprisonment for amounts above 1 kilogramme.  I will enhance the defendant’s sentence by 2 years to 25 years and 6 months’ imprisonment.

21.I have decided, taking into account the personal circumstances and background of the defendant, in particular her young age and that she has given birth to a child whilst in custody who will eventually be taken away from her, that the starting point should be reduced to 23 years’ imprisonment.  I do this as an act of mercy in light of the severe sentence that she will now face. 

22.The defendant is entitled to a one-third discount for her guilty plea and I reduce her sentence to 15 years and 4 months’ imprisonment. 

Ms Sabra Lo, SPP (Ag) of Department of Justice, for HKSAR

Ms Catherine Kam-kuen Wong, instructed by Tangs, assigned by Director of Legal Aid, for the defendant