HKSAR v. Zablah Cristo Jose Salvador and Another

HCCC 342/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 342 OF 2015

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

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COURT:

Both defendants have pleaded guilty to Count 1, which is the conspiracy to traffic in dangerous drugs, and Count 3, jointly trafficking in dangerous drugs. The 1st defendant has pleaded guilty to Counts 2 and 4 and the 2nd defendant has pleaded guilty to Counts 6 and 7.

The facts in this case is that the 1st defendant, needing some prescription drugs to boost his body building stamina and also for pain relief and anxiety over his business, began searching on the internet for suppliers. He found a supplier who was in Pakistan and began ordering from him. After a while, the Pakistani supplier suggested that the 1st defendant can help him forward packets of what he thought were prescription drugs, similar to the kind he had ordered, to customers of the supplier all over the world, for example, The United States of America and The United Kingdom.

The reason that was given to the 1st defendant was that there would be less Custom checking of these packets if they bore a Hong Kong stamp rather than a Pakistani stamp. The supplier suggested that he would reimburse the 1st defendant for the postage and also he could expect a fee on top of that for his trouble.

The 2nd defendant, a hair stylist by occupation and a former boyfriend of the 1st defendant, was then roped in by the 1st defendant who initially asked to use the 2nd defendant’s home address to receive some of the packages from Pakistan. The 2nd defendant readily agreed because he trusted the 1st defendant and also because they were still close friends although no longer in a relationship, and that was the beginning of the 2nd defendant’s involvement in the conspiracy.

As time went on, they not only had used their home addresses and work addresses to receive the parcels but also a post box at the Sai Ying Pun Post Office was also opened to receive these packages. When the 1st defendant went away on holiday for about a month, he asked the 2nd defendant to take over the forwarding of these packets from Pakistan to disseminate them at designated addresses worldwide.

A Newton inquiry was held and I accept that throughout the time of the conspiracy that both the 1st and 2nd defendants did believe they were only forwarding prescribed drugs and not heroin or ketamine.

Among other things, this point is reflected in the WhatsApp messages I have been referred to, when at one stage, the 2nd defendant expressed his worry about the packages and the 1st defendant assured him that, at most, if discovered, these would be drugs that would be subject to confiscation and nothing more. This shows a large measure of naivety but, given the background, I cannot find anything more sinister than that.

Then came the day of the arrest when the 1st defendant was at the Sai Ying Pun Post Office and had collected four parcels sent from Pakistan and he placed these four parcels on a table in Sai Ying Pun Post Office and proceeded to get some postal declaraion forms and mail bags, and that was when the Customs officers approached him. At that time, the 1st defendant had cut open one of the parcels which contained tablets. The Customs officers found that two parcels were in the name of the 1st defendant and the other two parcels were in the name of Jackal Wong, who is the 2nd defendant.

The 1st defendant confessed that he was repacking the packets to mail to other countries, sent to him by his Pakistani friend, and that the person Jackal Wong was his ex-boyfriend and he had borrowed the 2nd defendant’s name and address for posting parcels. A copy of the 2nd defendant’s identity card was also found on the 1st defendant.

The two parcels in the name of the 1st defendant were found to contain the drugs which is the subject matter of Count 2 and the two parcels that were in the name of the 2nd defendant contained drugs which is the subject matter of Count 3.

Subsequently, Custom officers took the 1st defendant to his home, and in the 1st defendant’s home were found drugs which is the subject matter of Count 4.

The 2nd defendant was arrested on 24 October 2014, and during a house search, Customs officers found a packet of dangerous drug which is the subject matter of Count 6. The 2nd defendant told Customs officers that he had received this packet about two to three weeks prior to his arrest, and was awaiting the 1st defendant’s instructions in order to mail them out. The 2nd defendant said he would receive half of the US$60 for each package that he mailed on behalf of the 1st defendant.

Then upon a search of the 2nd defendant’s workplace in Central, Customs officers found the dangerous drugs which is the subject matter of Count 7. The 2nd defendant said he was waiting for the 1st defendant to collect it as that package had been sent to his workplace.

In a video-recorded interview, the 2nd defendant admitted that he had started lending his name and workplace address to the 1st defendant about six months prior to his arrest in order to receive parcels and that whilst the 1st defendant was away from Hong Kong, he helped the 1st defendant to receive parcels and send parcels out.

The 2nd defendant also disclosed that the 1st defendant had told him that these pills were body building supplements and that it was the 1st defendant who asked him to declare, when he sent these packets out, to declare the contents as “CRAFT”, and to write false names and addresses in the senders column on the postal declaration form.

The 2nd defendant further said that once, on 16 October 2014, when he opened a parcel, he saw the word “EPHE” and he feared that these were dangerous drugs. So he asked the 1st defendant and the 1st defendant told him that this was diet pills, and the 2nd defendant said he checked online and was reassured.

The Custom officers made further investigation of the bank records of both defendants and their investigation revealed that between August 2013 and September 2014, the 1st defendant had paid a total of $359,288 worth of postal fees through his personal and credit card accounts, and between 20 January 2014 to 18 August 2014, the 1st defendant had also paid a total of $23,821.20 through his company account.

The 2nd defendant had paid a total of HK$75,065 on postal fees between 10 June 2014 and 17 October 2014. For the whole conspiracy period of about a year and four months, the total postal fees add up to about $434,000 which was just a little over $27,000 a month, and between 27 September 2014 to October 2014, the 1st defendant had transferred $86,000 to the 2nd defendant’s account.

Travel movement records show that the 1st defendant was out of Hong Kong from 13 September 2014 to 16 October 2014, and as part of the Agreed Facts, the estimated total market value of the heroin, ketamine and midazolam found was about HK$460,000.

I will deal briefly with the backgrounds of each defendant. The 1st defendant was born in 1972 and he is an Australian national. He is a body builder and originally had gone to Macau to work and then eventually came to Hong Kong to work in one of our larger fitness centres, and eventually, he bought a dance studio in Central. He augmented his income by being a personal trainer and also did events and choreography. He is a self-made man and through his hard work has achieved quite a lot in his life.

In his evidence, the 1st defendant disclosed that because of the many businesses he was involved in, he needed to take prescription drugs to ease his anxiety and also to relieve pain caused by his body building exercise, and also he needed supplements in order to maintain his body builder’s physique, and so he then started looking around for cheaper prescription drugs and eventually he found, on the internet, the supplier in Pakistan who was able to supply him with these drugs that he needed. That was his first step onto the slippery slope leading to the present offences.

I have no doubt, from the 1st defendant’s evidence and from the letter of his mother, that the 1st defendant is a caring and responsible person and to him, his body was his temple. He grew up with a good heart and was involved in sharing his knowledge with young persons in Australia to lead them away from drug activity and onto a more positive life style.

I also accept Father Wotherspoon’s letter which said that, while on remand, the 1st defendant brought to the Correctional Services Department’s attention the over-crowded condition in Lai Chi Lok leading to a positive remedying of the situation, and this is a reflection of the positive nature of the 1st defendant.

Whilst I have the greatest sympathy for the 1st defendant’s mother who has flown here all the way from Australia to show her love for her son, and it is demonstrated in her letter to the court, I cannot forget, however, the harm that these drugs can do to society wherever they are sent, and also the harm to Hong Kong’s international reputation which our valiant officers in the discipline forces are trying to keep in their fight against the nefarious and evil drug traffickers.

In relation to the 2nd defendant, he is aged about 35 and is also a self-made man. He came from a humble background and from the age of 17, started working as an apprentice in the hair industry and through his hard work, had become a respected hair stylist working in a salon in Central. The many letters I have received show that he is well-loved and respected by his friends, acquaintances and colleagues. Also of note is that, despite his long hours of work, he still had time for charitable works, for example, helping to build homes in Cambodia and participating in charity events organised in Hong Kong through the various organisations and religious events which he is a member of.

As I have already mentioned, the outpouring of letters to this court in mitigation shows not only that his friends and associates care for him and respect him but also is a testament to his moral uprightness. I accept that this fall from grace was more a failure of judgment than anything else. He was led into this by his simplistic trust of the 1st defendant. With hindsight, perhaps one could say that both defendants should have questioned more.

As in the case of the 1st defendant, I have the greatest sympathy for the 2nd defendant’s family. However, I have to, when sentencing, perform a balancing exercise which is the interest of society in stamping out this drug trafficking and the interest of the individual defendants. In other words, I have to try and seek a fair balance between the punishment society expects and the interests of each of these defendants given the unusual background to this case.

Now I turn to the sentence. The 1st count involves a conspiracy to traffick in dangerous drugs between the date of 15 June 2013 and 23 October 2014. It lasted 16 months and I would give both defendants the benefit of doubt that it just started with prescription drugs and, over time, after the seller in Pakistan realised that they can trust the 1st defendant, then only later on, began sending dangerous drugs with a mixture containing the heavier drugs like ketamine and heroin.

The 1st defendant foolishly trusted the Pakistani seller who used him to send these drugs overseas at minimal cost to his drug operation. I also accept, as I said, that the 1st defendant did not realise that mixed in with these prescription drugs were the more serious drugs like ketamine and heroin, because if the 1st defendant had known, he would not have so openly opened the parcels at the post office and sent it on using his credit card to pay for the postage.

The 2nd defendant is also in a similar position and, on top of that, the 2nd defendant also implicitly trusted the 1st defendant.

So looking at the background and the facts of the case, I consider that a 12 year-starting point of sentence would be appropriate for Count 1 and it would be reduced to 8 years because of his plea, for the 1st defendant.

As for the 2nd defendant, his role was much less and he only, later on in the conspiracy, handled the packages and forwarded them in the month that the 1st defendant was away from Hong Kong. Although it is true that he did receive packages at his home and workplace and did set up the Sai Ying Pun Post Office box, so I would give him a sentence of 7 years’ imprisonment.

Now in relation to the 2nd count against the 1st accused only, which is for trafficking in dangerous drugs, namely 2,408 tablets containing a total of 5.9 grammes of ketamine, 40.15 grammes of heroin hydrochloride, 5.95 grammes of 6-monoacetylmorphine hydrochloride and 10.1 grammes of monoacetylmorphine hydrochloride, 19,848 tablets containing 168.9 grammes of diazepam, 3,983 tablets containing 5.88 grammes of alprazolam, 999 tablets containing 4.54 grammes of nitrazepam.

According to Dr Tony Lai’s report which has been most helpful in explaining the different types of drug and effects, diazepam, alprazolam and nitrazepam are benzodiazepines. They act primarily on the gamma-amino butyric acid or “GABA” receptors resulting in sedation and feelings of relaxation. Long-term will increase tolerance and will require increasing amounts to achieve the desired effect. Withdrawal symptoms include anxiety, depression and other effects.

6-monoacetylmorphine hydrochloride is one of three active metabolites of heroin. It shares the high lipophilicity of heroin and penetrates the brain just as quickly. This is rarely encountered in isolated form but found in significant amounts in black tar heroin with diacetylmorphine, and intoxication can lead to depression, nausea and vomiting and the cessation of use would lead to characteristic withdrawal symptoms.

Heroin is an opioid drug synthesised by the acetylation of morphine. Heroin enters the brain and is converted back to morphine after ingestion. It produces drowsiness, euphoria and a sense of detachment. Again, intoxication can lead to respiratory depression, nausea and vomiting, and cessation, as we all know, leads to characteristic withdrawal symptoms.

Ketamine is a dissociative anaesthetic agent and non-competitive N-methyl-aspartate receptor antagonist which interferes with action of excitatory amino acids. Once taken, the patient appears to be in a cataleptic state resembling normal sleep and the drug distorts sight and sound perception and produces feelings of detachment and hallucinations and long-term use may induce urinary tract damage.

When sentencing in a cocktail of drugs, I adopt what the Court of Appeal said in Yip Wai Yin [2004] 3 HKC 367, that the combined approach in this case is appropriate, which is to calculate the applicable sentence for the most serious drug and then take into consideration significant quantities of the less serious drug. So in this case, the most serious drug is heroin which is 40.15 grammes and ketamine 5.95 grammes.

The guideline which is suggested in the case of Lau Tak Ming in 1990 said that for trafficking in between 10 to 50 grammes of heroin, it would merit a sentence of between 5 to 8 years’ imprisonment. Adding the two most potent drugs gives us about 46 grammes which would give us a starting point of 7½ to 8 years. I will take 7½ years as the starting point and make it up to 8 years to include the lesser drugs.

The 1st defendant gets one-third off for his plea of guilty, and also following the case of Li Chi Hung, CACC 18/2002, where the Court of Appeal considered a one-third to one-quarter discount to be appropriate for mistaken belief. In the case of the 1st defendant, I consider that an appropriate discount would be a quarter as the 1st defendant should have exercised more care to ensure that these were prescription drugs, rather than trusting the seller in Pakistan whom he did not know personally.

So on Count 2, the 8-year sentence is reduced by one-third which would give us 5 years 4 months and reduced by a further quarter is 4 years. I would enhance that sentence by 4 months for the international element. So the 1st defendant will go to jail for 4 years 4 months on Count 2.

On the 3rd count, which is against both defendants for trafficking in a dangerous drug, namely 3,072 grammes of a powder and 300 millilitres of a liquid containing a total of 2,658.5 grammes of ketamine, 14 tablets containing a total of 0.11 grammes of heroin hydrochloride and 0.28 grammes of 6-monoacetylmorphine hydrochloride, 82 tablets containing 0.01 grammes of morphine, 13,025 tablets and 2 millilitres of a liquid containing a total of 122.26 grammes of diazepam, 531 tablets and six tablet fragments containing 0.51 grammes of alprazolam, five tablets containing 0.02 grammes of nitrazepam, 1,120 tablets containing 1.92 grammes of clonazepam, 4,450 tablets containing 33.29 grammes of methylphenidate, 60 tablets containing 0.13 grammes of bromazepam, 360 tablets containing 0.54 grammes of lorazepam, 10 tablets containing 0.01 grammes of lormetazepam, 60 tablets containing 0.32 grammes of midazolam, 160 capsules containing 3.68 grammes of temazepam.

The drugs clonazepam, lorazepam, bromazepam, lormetazepam, midazolam and temazepam are classified as benzodiazepines which I have referred to in Count 2, so I need not go over that again. According to Dr Lai’s report, methylphenidate works on the central nervous system with actions similar to amphetamines and when used intra-nasally, similar effects to cocaine, giving an instant high and euphoria.

In this count, the largest quantity of drug is ketamine which is 2,558.5 grammes and according to the guidelines laid down Hii Siew Cheng in 2009, the Court of Appeal said that for trafficking in over 1,000 grammes, it would merit a 14-years’ sentence and upwards. It has also been suggested in later cases by the Court of Appeal that, for quantities of 2,000 to 3,000 grammes, the sentence should not be less than 18 to 20 years’ imprisonment.

In this case, adding together the ketamine and heroin would give us a quantity of about 2,658 grammes and adding the diazepam, etc, would give us just over 2,700 grammes. So I would adopt a starting point of 18 years.

In relation to the 1st defendant, he has pleaded guilty so he gets one-third off which would reduce the sentence to 12 years and then a quarter off for his mistaken belief, reducing the sentence to 9 years. Then I would enhance it for the international element by 1 year so it gives a total sentence of 10 years.

In relation to the 2nd defendant, he is also given one-third off for his plea, reducing the sentence to 12 years, and then I would give the 2nd defendant one-third off for his mistaken belief. So he is sentenced to 8 years’ imprisonment on Count 3.

In relation to Count 4, which is against the 1st defendant only, it is for trafficking in dangerous drugs, namely 45.1 grammes of a powder containing 39 grammes of ketamine, 1,471 tablets containing a total of 15.33 grammes of heroin hydrochloride and 12.94 grammes of 6-monoacetylmorphine hydrochloride, 6,531 tablets containing 38.98 grammes of diazepam, 131 tablets containing 0.11 grammes of alprazolam, 197 tablets containing 0.36 grammes of clonazepam, 93 capsules containing 2.4 grammes of temazepam.

Adding up the more potent drugs, that is the ketamine and the heroin, would give us about 54.33 grammes, and adding up the diazepam and the other drugs would give us just over 50 grammes of the less potent drugs.

The guideline for ketamine is for trafficking in 50 to 300 grammes of ketamine would merit a guideline sentence of 6 to 9 years’ imprisonment. In this case, I would adopt a starting point of 6 years, then giving the 1st defendant one-third off for his plea, reducing the sentence to 4 years, and then a quarter off for the mistaken belief gives us a 3-year sentence, and I enhance it by 6 months to take into account the international element. So he goes to prison for 3½ years.

In relation to the 6th count against the 2nd defendant only, the 2nd defendant has pleaded guilty to trafficking in dangerous drug, namely 2,539 tablets containing 22.9 grammes of diazepam. In this case, I would adopt a 3-months’ sentence and giving him one-third off for plea would reduce the sentence to 1 month. I would enhance it by 1 month for the international element. So the defendant is sentenced to 2 months’ imprisonment.

I must add that I do remember that the 2nd defendant also did have a mistaken belief but I have considered that and, therefore, the starting point sentence for the Count 6 is lower than I would have given, because if I had done it by taking it into account and giving a one-quarter, it would make a very confusing mathematics because we would be dealing with days rather than months. So I think it is easier for me to take into account the fact of the mistaken belief and adopt a lower starting point in Count 6.

The last count, which is Count 7, again against the 2nd defendant only, he has pleaded guilty to trafficking in a dangerous drug, namely 11,814 tablets containing 119.1 grammes of diazepam and 13,970 tablets containing 12.8 grammes of alprazolam.

Having taken into account, as I did in Count 6, the fact that there was a mistaken belief and that the total weight of the drugs is in the region of 130 grammes or so, I consider that an appropriate starting point would be 6 months and taking the one-third off for plea, will be 4 months which is then enhanced by 1 month for the international element, thus making it 5 months’ imprisonment.

So now having said that, I have got to consider the totality element and having considered the facts of the case, all the circumstances which I have mentioned, I consider that a fair way of considering the totality principle would be to make all the sentences concurrent in the case of the 1st defendant. So the 1st defendant will go to prison for 10 years.

For the 2nd defendant, similarly, I consider that all the sentences will be served concurrently and he will go to prison for a total of 8 years.