HKSAR v. Lim Aun Paik and Another

HCCC 245/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 245 OF 2014

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

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COURT: Defendants, you each pleaded guilty to separate counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, the 1st defendant, Mr Lim, to Charge 1, and the 2nd defendant, Mr Poh, to Charge 2, to the exact same offence, committed on the exact same day, but in different quantities.

You admitted that on 26 October 2013, at the Hong Kong International Airport, Chek Lap Kok, in Hong Kong, you, Mr Lim, unlawfully trafficked in 1.99 kilogrammes of a powder containing 1.62 kilogrammes of cocaine, and as with respect to Mr Poh, the 2nd defendant, to 1.98 kilogrammes of a powder containing 1.63 kilogrammes of cocaine. You had pleaded guilty before a magistrate at the Eastern Magistracy on 30 May 2014. You were then committed to the Court of First Instance for sentence.

You appeared before this court, myself, on 16 March 2015 and you both confirmed your plea of guilty and the Summary of Facts that had been read to you at the magistracy upon your plea of guilty. Your sentence was however adjourned until after the trial of a co-accused at that time, which was Madam Low Ling-lee, because you both offered to give evidence against Madam Low for the prosecution.

That trial against the defendant, Madam Low, that is HCCC 244/2014, commenced this year on 4 January 2017 and lasted some 20 days. During that trial, you both gave evidence for the prosecution. At the end of the trial, that defendant, Madam Low Ling-lee, was convicted by the jury. She was, however, convicted for the total quantity of drugs found on you both and she was sentenced on 3 February 2017. Since the trial against Madam Low has been completed, you now have been brought up for sentence before me today.

The facts as you admitted before the magistracy were, quite simply, that on 26 October 2013, after your arrival in Hong Kong International Airport from Malaysia, you were intercepted by police officers and searched. Upon your persons, more particularly strapped to your thighs, both thighs, were the quantity of drugs to which you had pleaded guilty.

The retail value of the cocaine seized from Mr Lim was estimated to be around $1,948,210 and the estimated value of the drugs strapped to Mr Poh was $1,938,420.

Both of you, as I have mentioned, gave evidence in the trial against Madam Low. I have heard much more about you in that trial and the circumstances of how you came to commit this offence. In summary, you are both Malaysians from Penang and had been recruited by Madam Low to bring those drugs strapped to your thighs to Hong Kong from Malaysia for a reward of 20,000 Malaysian ringgit. Madam Low had accompanied you from your hometown of Penang to Kuala Lumpur, then from Kuala Lumpur to Kota Kinabalu, and then from Kota Kinabalu, those drugs were strapped upon your thighs and you brought them into Hong Kong.

It is correct that the evidence you gave in this trial against Madam Low assisted the prosecution and as a result of which, Madam Low was convicted. I accept that you came up to proof and it appears, clearly, that the jury found you very reliable witnesses, as a result of which, I have no doubt at all that you should be given a discount of your sentence for the assistance that you both gave in that trial to the prosecution in bringing Madam Low to conviction.

Clearly, your roles were different from Madam Low’s in that you both were the couriers, or the mules, of the drugs. Madam Low was the recruiter and the middleman between yourselves and the supplier of the drugs. So far as your role in this offence is concerned, I do consider that it was less serious than that of Madam Low.

The two defendants - first of all I will deal with Mr Lim, the 1st defendant. You are 42 years of age, born in Malaysia. You had an ironworks business but, as that closed down, you took part in this offence. You are married with two sons aged 14 and 17, and a wife who is 38. You received education to secondary level 5 and your mother suffers from ill health, particularly regarding her heart ailments. Mr McGowan, your defence counsel, realistically says that you may not be able to see your mother again before completion of your sentence.

As regards the 2nd defendant, Mr Poh, you are 36 years of age, born in Malaysia and were a decoration worker and single and have had education up to secondary level 3.

I also have before me, for both Mr Poh and Mr Lim, a letter written by Madam Gloria, I will say Valencia - I cannot pronounce your surname - telling me that since you have been remanded in prison, you have turned to the Lord or God and that she is assisting you whilst you are in prison. So far as Mr Poh is concerned, you converted from Hinduism to Christianity.

So far as Hong Kong is concerned, you both have clear criminal records. However, in the trial itself, I had heard evidence volunteered by Mr Poh that he had served a sentence in Malaysia for possession of dangerous drugs. This however, in my view, is not an aggravating factor and I shall not take that into account upon sentencing Mr Poh.

The guideline case for trafficking in this amount of cocaine is set down by the Court of Appeal in the case of HKSAR v Abdallah. The guideline is, for between 1,200 to 4,000 grammes, a starting point of 23 to 26 years’ imprisonment after trial. For the quantity of cocaine that you were trafficking in, had you been convicted after trial, I would have taken a term of 23 years and 3 months’ imprisonment.

You had both brought these drugs into Hong Kong from Malaysia and as the Court of Appeal said in Abdallah, this is an aggravating factor calling for the enhancement of the starting point. In view of the quantity of drugs that you had brought in, I therefore enhance that starting point by 2 years’ imprisonment. That makes the sentencing point 25 years and 3 months’ imprisonment.

The strongest mitigating factor is your early pleas of guilty. For that, of course, the usual discount should apply and that is a one-third discount.

You had, as I mentioned, given assistance to the prosecution in this case by giving evidence against Madam Low. The Court of Final Appeal in Z v HKSAR, FACC 9/2006, recognised that where the defendants had not only given information but had proceeded to give truthful and material evidence, a usual discount would be one of 50 per cent including the one-third reduction for a plea of guilty. It is my view that you do both warrant a 50 per cent discount.

In the circumstances, 50 per cent discount from the sentencing point of 25 years and 3 months’ imprisonment is one of 12 years and 7 months’ imprisonment, to which you shall each be sentenced to.