HKSAR v. Tsang Wai Hung

HCCC 187/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 187 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

The defendant was intercepted for an x-ray check upon his arrival at the Green Channel of the Customs Arrival Hall, Lo Wu Control Point. In his backpack were five layers of wrapping inside which contained 348 grammes of a mixture in the form of a block, containing 235 grammes of heroin hydrochloride. There were also three layers of wrapping. Inside, there was 495 grammes of a crystalline solid containing 485 grammes of ‘Ice’. There were also two plastic straws and four pieces of tinfoil papers and 25 empty ziplock bags.

He admitted that those were heroin and ‘Ice’ which he was given about two hours ago in Shenzhen to be delivered back to Hong Kong. He was expecting $1,000 as a reward after delivery. A home search at the defendant’s residence revealed four packets of ‘Ice’, totalling 10.1 grammes of a crystalline solid containing 10 grammes of ‘Ice’ and 8 foil packs containing 71 tablets which contained 0.67 grammes of nimetazepam.

The retail value of all the drugs was in the region of $442,000.

The defendant is now aged 46, he has seven previous convictions, one similar to the present, in 2008 for trafficking in dangerous drugs. He received a 7 year and 4 month sentence.

By way of mitigation, I was told that after his discharge from prison in 2013, he managed to become a scaffolding worker with stable income, maintaining two families, namely that of his mother whom he resides with when he was in Hong Kong, and that with his wife and 10-year-old daughter in Shenzhen. However, it was submitted that during the past 7 months, due to insufficient work, he succumbed to the temptation of bringing drugs back from China to Hong Kong at a reward of $1,000. He now regrets it knowing that he is looking at a lengthy sentence and that would deprive himself the opportunity of being a filial son and a responsible father. He shows his remorse by an earliest plea of guilty.

In sentencing the defendant I have taken into account his plea, nature of the drugs, relevant sentencing tariff and mitigation forwarded by counsel on his behalf. In respect of the trafficking charge, it involves two types of drugs; in relation to Charge 2, there were also two types of drugs involved.

In respect of the 1st charge, it involves 235 grammes of heroin and 485 grammes of ‘Ice’. Taking it separately, the heroin will fall into the 12 to 15 year starting bracket, whilst the ‘Ice’ will fall within the 15 to 20 year bracket.

By taking a combination approach, I use the total amount of drugs in the 1st charge which weighed up to 720 grammes. Had they all been heroin, they will fall within the 600 to 1,200 grammes bracket, attracting a 20 to 23 year starting point, and had they all been ‘Ice’, they would be above 600 grammes which will be the same tariff as prescribed in Abdallah’s case for those quantities of heroin, ie, 600 and 1,200 grammes (again, a 20 to 23 year starting point). I adopt a starting point of 21 years’ imprisonment and enhance it by 1 year for the cross-border factor.

I shall give him the full one-third discount for his guilty plea. He is sentenced to 176 months’ imprisonment, ie, 14 years and 8 months.

In respect of charge 2, I adopt a starting point of 18 months, reduce it to 12 months for his guilty plea. Taking into account the totality principle, I order the sentence in respect of the 2nd charge to run concurrently with the sentence in respect of the 1st charge.