HKSAR v. Chan Po Yu

HCCC 69/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 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 on one charge of trafficking in a dangerous drug. The Particulars of Offence provide that on 31 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 1,349 grammes of a crystalline solid containing 1,340 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 31 August 2014, police officers conducted an anti-dangerous drug operation at the Hong Kong International Airport. At around 6.50 pm on the same date, a female aged 23 (the defendant) approached a counter to check-in for her flight to Australia and was intercepted by the police officers.

A search of the hidden compartment of her backpack produced two packets (consisting of plastic foam with carbon paper wrappings) of suspected dangerous drugs.

The defendant was arrested for trafficking in a dangerous drug. Under caution, she said, “I carry dangerous drugs to Australia for a friend only because I owe someone money”.

The suspected dangerous drug was confirmed to be a total of 1,349 grammes of a crystalline solid containing 1,340 grammes of methamphetamine hydrochloride.

In her video-recorded interview, the defendant said under caution, inter alia, that:

(1) In 2013, the defendant became acquainted with a male named Mr Chan on the internet. Mr Chan, via telephone and WhatsApp, offered the defendant illegal jobs involving drug trafficking and bogus marriage, which were all refused by the defendant.

(2) In mid-August 2014, Mr Chan called the defendant again. He offered the defendant a reward of HK$30,000 for bringing drugs from Hong Kong to Australia. The defendant, who was in need of money, accepted the offer.

(3) On 21 August 2014, the defendant received a telephone call from Mr Chan who instructed her to purchase air tickets on the following day.

(4) On 22 August 2014, she met up with two males named “Kelvin” and “Chong”. She then went to a travel agency to obtain details for a trip to Sydney, Australia. It was intended that she would take the flight on 31 August and return to Hong Kong on 5 September.

(5) After confirming the details with the travel agency, Chong provided her with $12,200 for purchasing the air ticket and accommodation package.

(6) On 29 August 2014, the defendant received WhatsApp messages from Mr Chan who reminded her to go to China on 30 August 2014.

(7) On 30 August 2014, the defendant met up with Kelvin and Mr Chan in China. Chong later appeared and gave the defendant a backpack. The defendant sensed there were dangerous drugs inside the backpack. She was instructed to bring it back to Hong Kong and then to Australia. Someone would contact her for collecting the drugs after she arrived in Sydney.

(8) The defendant then returned to Hong Kong with Mr Chan and Kelvin.

(9) She had not received her monetary reward.

In August 2014, the estimated retail value of the seized dangerous drug was HK$574,674.

A travel consultant has confirmed the defendant’s trip details, which are consistent with the version that she put forward in her video-recorded interview.

By way of personal background, the defendant is now 25 years of age. She was born in Hong Kong in December 1990. She has completed Form Five education in Hong Kong. After quitting school, she studied Project Yi Jin at the Lingnan University. She had been employed as a waitress, a security guard, a tele salesperson and an aircraft maintenance apprentice. At the time of her arrest, she was unemployed. The defendant is single.

The defendant does not have any previous criminal conviction.

In mitigation, Ms Susanna Lee, on behalf of the defendant, urged upon me to take into account her guilty plea. I was told that the relationship between the defendant and her mother had not been good. As a result, the defendant has been living with her maternal aunt since she was 18. The defendant’s aunt has been on social welfare and the husband of the aunt got himself in serious trouble by owing money to debt collectors.

I was told that the defendant committed the present offence purely in order to help her aunt to make ends meet. The defendant could not resist the temptation of a reward of $30,000 to bring the drugs to Australia.

Three mitigation letters from respectively the defendant, her aunt and the chaplain of the school which the defendant had attended have been submitted to the court. Their contents have been duly noted.

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 serious cases of drug trafficking, which call for severe deterrent sentences in order to protect the public.

The defendant has promised to assist the prosecution by giving evidence against the person named as “Kelvin” in the Summary of Facts, at a trial scheduled to take place in July 2017. However, it is clearly established that this court should confine itself to what has occurred up to the date of sentence and should not give credit for a promise to give evidence. Credit should be given for what a defendant has actually done and not for what she promises to do [see: for example, R v Ng Hon Kit [1991] 1 HKLR 56, at 60E-G]. Any assistance to be given by the defendant in the future can be acknowledged by an appeal to the Court of Appeal against sentence or the executive in due course.

The dangerous drug involved in the present case is 1,349 grammes of a crystalline solid, containing 1,340 grammes of methamphetamine hydrochloride. The offence was committed on 31 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 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 (1,340 grammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 23 years’ imprisonment.

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

I shall give the defendant the full one-third discount for her guilty plea.

The defendant is accordingly sentenced to 16 years and 8 months’ imprisonment.