HKSAR v. Ho Chung Hin

HCCC 199/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 199 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.The two defendants have pleaded guilty to trafficking in a dangerous drug for which they are now to be sentenced.  The 2^nd defendant (D2) pleaded guilty to the trafficking offence first, while the 1^st defendant (D1) initially maintained his plea of not guilty.  It was after D2 having made a non-prejudicial statement and indicating that she would give evidence against D1, that D1 pleaded guilty to the trafficking offence.  It is necessary to examine the history of the proceedings in order to determine whether it should have any bearing on the sentence to be passed.

Case history

2.The two defendants were jointly charged with trafficking in a dangerous drug in relation to the total quantity of drugs alleged to be in their possession (Count 1) and in the alternative separately charged with trafficking in a dangerous drug in relation to the quantity of drugs alleged to be in their respective possession (Count 2 against D1 and Count 3 against D2).

3.On 11 December 2014, the two defendants had been stopped at Hong Kong International Airport by police before boarding a flight for Indonesia.  They were travelling together.  They each had a suitcase which was searched.  In their respective suitcases was found a large quantity of Ice. In the suitcase of D1 was found 2,919 g of Ice, and in D2’s was found 2,654 g of Ice.  At the time of the offence, the street value of the drugs in D1’s suitcase was $1,275,603, and in D2’s suitcase was $1,159,798. 

4.On 15 May 2015, upon an indication that the two defendants would plead not guilty to the charges, they were committed to the Court of First Instance for trial.

5.On 24 June 2015, the trial of the two defendants was fixed to take place on 3 October 2016 with 10 days reserved and a pre-trial review to take place on 15 August 2016.  These dates were subsequently confirmed in a mention hearing on 29 July 2015.

6.At the pre-trial review on 15 August 2016, the position of the defendants was that they would plead not guilty to the charges and would challenge the admissions made under caution while admitting that the drugs in question were in their respective suitcases as alleged.  Both defendants were on legal aid and represented by counsel.  D1 was represented by Mr Edward Laskey, and D2 was represented by Ms Munira Moosdeen.  The prosecution was represented by Mr Jeevan Hingorani.  Mr Laskey indicated that D1 wished to have new counsel and a further pre-trial review was fixed for 1 September 2016 to ensure that that had taken place.

7.At the second pre-trial review on 1 September 2016, Mr Leung Chun Keung was the new counsel representing D1.  He confirmed that D1 would maintain his plea of not guilty.  He indicated that D1 would challenge the admissions under caution but wished to have extracted from his mobile phone the WhatsApp messages that were stored there.  Mr Hingorani informed the Court that an examination of the messages on D1’s mobile phone had not been conducted but would be done in the meantime.  Ms Moosdeen for D2 indicated that her client would plead not guilty to Count 1 but guilty to Count 2 which was likely to be accepted by the prosecution.  A third pre-trial review was fixed for 29 September 2016 to take the plea from D2 if the plea proposal was acceptable to the prosecution.

8.Prior to the third pre-trial review, the Court was informed by letter dated 22 September 2016 from the solicitors for D1 that they had been informed by the prosecution that retrieval of the WhatsApp messages could not be done before the commencement of the trial and they therefore had been instructed by D1 to apply for an adjournment of the trial due to the importance of these messages to the defence case.

9.In the meantime, the prosecution had agreed to the plea proposal from D2 who had indicated that she would provide a statement to the authorities and give evidence for the prosecution at the trial of D1.  A statement was taken from D2 and served on D1 on 27 September 2016, two days before the third pre-trial review.

10.At the third pre-trial review on 29 September 2016, Mr Leung for D1 informed the Court that a copy of D2’s statement had only recently been received, but he had the opportunity to discuss the evidence with the defendant who had given instructions that he would maintain his plea of not guilty.  Mr Hingorani, however, indicated that the prosecution were having difficulty retrieving the WhatsApp messages from D1’s phone, and after inquiries had been made the Court was informed that the task of retrieving them would take 3 to 4 weeks.

11.The case proceeded to the first day of trial on 3 October 2016 when D2 pleaded guilty to Count 3.  A Summary of Facts was agreed by D2 and she was accordingly convicted of Count 3.  Count 1 was left on the Court file and marked “Not to be proceeded with without the leave of the Court or the Court of Appeal.”  D2’s sentence was adjourned to the conclusion of D1’s trial.  Due to the time needed to retrieve the WhatsApp messages, the trial dates for D1 were vacated and the case was referred to the Listing Judge for re-fixing.

12.On 23 November 2016, the case against D1 was fixed for a pre-trial review on 5 April 2017 and a trial with eight days set aside commencing on 2 June 2017.

13.By letter dated 22 March 2017, Mr Leung for D1 indicated that his client would plead guilty to Count 2 which was acceptable to the prosecution.  Accordingly, D1’s pre-trial review and trial dates were vacated and a hearing date was fixed for today for D1’s plea and sentence, and for D2’s sentence.

14.D1 pleaded guilty to Count 2 and in similar circumstances to D2, Count 1 was left on the Court file and marked “Not to be proceeded with without the leave of the Court or the Court of Appeal.” 

Admitted facts

15.Because the two defendants have pleaded guilty at different times and to different counts on the indictment, each has agreed to a Summary of Facts addressing their culpability in the present case.  The facts giving rise to their guilty pleas can be summarised as follows. 

16.On 11 December 2014, it had been arranged for D1 and D2 to take a trip together to Indonesia for the purpose of transporting drugs in their luggage.  They were stopped by police before boarding a flight from Hong Kong to Indonesia.  They were searched by the police but nothing was found on them.  Their luggage was then examined.  Inside the inner layer of the suitcase of D1 was found 10 aluminium foil packets, and similarly inside the inner layer of the suitcase of D2 was found 9 aluminium foil packets.  The packets contained the quantity of Ice as particularised against D1 and D2 in Counts 2 and 3 respectively.

17.D1 at the time said “Ah sir, I owe somebody money so I traffic in dangerous drug to Indonesia for somebody.”  He later made full admissions in a video recorded interview.  He said he was in debt and someone approached him to traffic in drugs to make money.  He said that on the day before they were arrested, he was introduced to D2 by a man who told them to attend a travel agency and collect 2 tickets and a hotel voucher for the trip to Indonesia.  They were then taken to a market to buy clothing to put into their suitcases.  Later the same day, they met up with another man who gave them each a mobile phone and cash of $4,000.  They were taken by bus to mainland China.  They arrived there late in the evening and taken to a hotel. It was there that the drugs were packed in their suitcases.  The next day at about 1 pm they were taken by car from mainland China to Hong Kong International Airport for the flight to Indonesia. 

18.When the drugs were found in D2’s suitcase, she said “Sir, I only received 40,000 dollars for carrying some pork to Indonesia.”  Later in a video recorded interview, she admitted that she transported the drugs in her suitcase because of her financial problems.  She said she had been approached by a friend by the name of Ah Nam, who was also known as Mr Chan, to transport Ice to Indonesia.  She was offered $30,000 to $40,000 and she agreed.  She handed her passport to Ah Nam.  She said that she did not want to go and requested her passport back.  She was told that she would have to pay back the money for the hotel and ticket and that they knew where she lived.  She said she agreed then to go to Indonesia.  She also stated that the day before her arrest she was introduced to D1 by Ah Nam.  Later, another person who had previously collected her passport, Ah Chun, returned to her and D1 their respective passports and arranged for them to collect their air tickets and hotel vouchers.  She also confirmed they went to the market to purchase clothing and later went to mainland China where they stayed in a hotel overnight.  She confirmed that the drugs were packed in their suitcases and they were then taken the next day to Hong Kong International Airport for the flight to Indonesia. 

The criminality involved

19.As is apparent from the Summary of Facts, the two defendants agreed to act as couriers to transport a large quantity of Ice to Indonesia.  It was an elaborate plan where the members of the drug syndicate had arranged D1 and D2 to pretend to be a couple travelling to Indonesia.  The syndicate members obtained their passports and made all the arrangements for the trip, obtaining visas, arranging air tickets and hotel accommodation.  On the day before their trip, they were taken to a market to buy clothing to be put into their suitcases.  Afterwards, they were transported to mainland China where they stayed overnight in a hotel.  It was there that the clothing and the drugs were packed in their respective suitcases.  The next day they were transported by vehicle from mainland China to Hong Kong International Airport for the flight to Indonesia. 

20.D2 admitted being promised a reward of $30,000 to $40,000, and D1 admitted that he agreed to transport the drugs for money. 

Mitigation

21.The two defendants prior to the offence did not know each other.  Both defendants are young.  D1 was 21 and D2 was 20 at the time of the offence.  Both have clear records.  Both come from broken families and appear to have experienced emotional and financial hardship.  They appear to have been preyed upon by the members of the drug syndicate involved because of their vulnerability and naivety.  What is extraordinary is that I am told by their counsel that they did not appreciate the grievousness of the crime involved and the likely sentence they could face if convicted in Hong Kong or in Indonesia. 

22.D1 was born in mainland China and came here with his family when he was 2.  He was educated up to secondary level 3 in Hong Kong.  After leaving school, he worked as a computer salesman, a construction worker and a stage lighting technician.  I am told that at the time of the offence he lived with his family and has not engaged in substance abuse.  I am also told that he was heavily in debt owing about $200,000 and this led him to succumb to temptation, by agreeing to transport the drugs for reward.  Letters were submitted on his behalf from his uncle and aunt who he is particularly close with.  They describe him as a decent young man who has little support or stability in his life because of his family circumstances.

23.Mr Leung on his behalf urged the Court not to enhance his sentence by more than 2 years for the international element.  He also urged the Court because of D1’s late guilty plea not to reduce the usual one-third discount for a plea of guilty to 25 percent or less.  As is apparent from the case history, D1 did not make a timely plea.  He had requested that messages from his mobile phone be extracted which he would have known about.  It required time and effort on the part of the law enforcement authorities to secure the necessary information.  Even in the face of D2’s statement and indication that she would give evidence against him, he maintained his plea. The original trial dates were vacated and new trial dates were fixed, but it would appear that this was done in order to address the issue of the WhatsApp messages.  It was only recently that he indicated that he would plead guilty to Count 2.  I have decided that D1 is not entitled to the full one-third discount which is a position that Mr Leung appears to accept.  I will reduce the discount to 30 percent for the foregoing matters.

24.D2 was born in Hong Kong.  Her parents separated at an early age.  She lived with her father and her elder sister lived with her mother.  Unfortunately, her father passed away unexpectedly in February 2017.  She received vocational training and prior to and at the time of the offence she worked in the entertainment industry.  It was through her work that she met the person, Ah Nam.  He was the one who encouraged her to smuggle the drugs to Indonesia.  She has not been in trouble with the law before and has not engaged in substance abuse.

25.I have had numerous letters submitted to me on D2’s behalf which includes a letter from her father which he wrote before he passed away.  They all speak well and positively about D2.  D2 has also submitted letters to me.  She informs me that she is now a Christian and deeply regrets her involvement in this crime.  She mentions the trauma that she has gone through and the recent loss of her father.  She asks for forgiveness and a lenient sentence.  She explains in positive terms that she is keen to learn from this experience and turn over a new leaf. 

26.Ms Moosdeen for D2 submits that the defendant’s involvement in this crime is out of character and was a result of financial pressures that she was under at the time.  She notes that whilst D2 initially agreed to smuggle goods for Ah Nam, she tried to get out of it but was made to go through with it.  She submits that she was vulnerable and easily manipulated. 

27.In D2’s case, she made a timely plea and is entitled to the usual one-third discount for having done so.  She also made a statement to the authorities and was prepared to give evidence against D1 at his forthcoming trial.  I have been provided with a copy of the statement.  I have taken into account the assistance that she has rendered to the authorities by her statement and her preparedness to give evidence against D1.  Even though she is no longer required to give evidence for the prosecution now that D1 has pleaded guilty, she is deserving of a discount because she gave considerable assistance to the authorities by making a statement for the purpose of giving evidence at D1’s trial.  I am of the view that her one-third discount that she would be entitled to receive for her guilty plea should be increased for the assistance that she rendered and offered to the authorities to 40 percent. 

Sentence

28.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. 

29.Based on the narcotic content of the drug in the case of each defendant, I would adopt a starting point of 24 years and 9 months’ imprisonment in D1’s case and 24 years and 4 months’ imprisonment in D2’s case. 

30.There is the aggravating factor of an international element to this offence, in that the defendants 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 kg.  I will enhance the sentence of D1 and D2 by 2 years.

31.I should add that when a starting point is already very high, the enhancement suggested may increase the sentence to a level that would be unduly harsh and excessive in the circumstances of the offence and the offender.  When a sentence reaches such very high terms of imprisonment because of enhancements for aggravating factors, it may be necessary to make some practical adjustment to ensure that a just and proportionate sentence is achieved to reflect the overall culpability of the offender’s conduct. 

32.It is most unfortunate that the two defendants who have never been in trouble with the law before face a very long term of imprisonment that will have a crushing effect on them.  I bear in mind their young age and vulnerability and the role that they played in this crime which was at the behest and direction of others.  It is for this reason that I will be as lenient as I possibly can in the circumstances.

33.As I have indicated, D1 is entitled to a 30 percent discount for his plea of guilty which will result in a sentence of 18 years and 6 months’ imprisonment. 

34.As I have indicated, D2 is entitled to a 40 percent discount for her plea of guilty and for the assistance that she has rendered to the authorities which will result in a sentence of 15 years and 9 months’ imprisonment.

35.I have decided, bearing in mind the age of the two defendants, their personal background and circumstances, their involvement and role in the offence, and the matters that I have mentioned about sentence, to reduce their sentences further by 1 year and 6 months.  

36.Accordingly, D1 is sentenced to 17 years’ imprisonment and D2 is sentenced to 14 years and 3 months’ imprisonment.

Mr Jeevan Hingorani, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Pang Kung & Co, assigned by Director of Legal Aid, for the 1^st defendant

Ms Munira Moosdeen, instructed by Ivan Tang & Co, assigned by Director of Legal Aid, for the 2^nd defendant