HKSAR v. Tsim Hiu Yee

HCCC 423/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 423 OF 2016

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REASONS FOR SENTENCE

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1.By unanimous verdict of the jury, the defendant was found guilty of trafficking in a dangerous drug. It now falls to this Court to sentence the defendant.

2.The facts giving rise to the conviction can be briefly stated as follows.  On 16 May 2016, the defendant entered mainland China at the Lo Wu border crossing at 11:08 pm and returned to Hong Kong through the Lok Ma Chau Control Point at 11:52 pm.  Arrangements had been made for her to meet a male who was not known to her and who was to accompany her into mainland China to meet another person in order to pick up a package.  She was given a white cardboard box which was put into a white paper bag.  The male who accompanied her followed behind her as she returned to Hong Kong.  She was to meet him after she got through customs clearance at the taxi stand outside Lok Ma Chau Control Point where she was to give him the parcel and he was to give her money.  She was observed behaving suspiciously by a Customs officer who stopped her.  The bag was scanned and produced a positive result to ketamine.  The Customs officer searched the bag and found the white cardboard box inside.  She cut the adhesive tapes wrapped around the box and found inside 1,372.7 g of a powder containing 864.7 g of ketamine. 

3.The sole issue at trial was whether the defendant knew she was bringing into Hong Kong dangerous drugs.  Her defence was that she thought she was bringing in ivory powder.  She had claimed at trial that she was desperate to earn some “quick money” and she responded to a post on Facebook that was offering a substantial fee for delivering “stuff” abroad.  Through WhatsApp, she communicated with the person who was offering this opportunity to make “quick money”.  She asked the person what was the stuff that she had to deliver, and she was told that it was DD.  She said that she asked the person what was DD as she did not know what it was.  She was told that it was ivory powder.  She agreed to make a delivery to Japan and arrangements for the trip were made for her.  She was asked to pick up a small parcel of ivory powder from mainland China which was to be delivered to Japan. 

4.At the time of her arrest, she agreed to assist Customs officers in a controlled delivery.  A number of failed controlled deliveries took place.  She had with her a mobile phone through which she communicated with the persons involved in this offence.  During the controlled delivery, she was asked to communicate with them by way of phone and WhatsApp messages. Whilst participating in a controlled delivery, she had sent a message to a friend that she had been caught with “K Chai”.  She also deleted previous messages on her phone.  She claimed that she mentioned “K Chai” to her friend because that had been mentioned by the Customs officer when the drugs were discovered.  Her friend had first contacted her which the defendant said came about from an earlier message she sent her, expressing her concern about the trip to mainland China.  Her friend noted that the defendant had asked her to report to the police if she did not contact her by a certain time.  When the defendant sent the message that she had been caught, her friend followed up with a series of messages and calls in an apparent effort to find out if she was alright.  The defendant later revealed to Customs officers that she had sent this message.  In the defendant’s subsequent interview, she revealed that she had deleted messages because she was concerned that the reference to “delivering stuff” might be taken the wrong way.  

5.The jury by its verdict did not accept the evidence of the defendant and clearly concluded that she knew she was bringing into Hong Kong dangerous drugs.

The defendant’s mitigation

6.The defendant was 21 at the time of the offence and she is now 22.  At the time of the offence, she was a student and lived with her family.  After she had completed secondary level 6, she enrolled in a foundation diploma.  She had not been in trouble with the law prior to this offence and she was not a drug abuser.  

7.I have received letters from her family, friends and teachers.  They all speak of the defendant in positive and glowing terms. She comes across as a caring and publicly spirited person who gets on well with all around her.  It makes the conviction that she has now received even more tragic. 

Sentencing the defendant

8.It is a fundamental principle that following conviction, the sentence to be imposed on an offender must sufficiently reflect the gravity of the offence.  See Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297.  However, a sentencing court in evaluating and determining a just and appropriate sentence should consider all relevant circumstances relating to the offence and to the offender.

9.Whilst the sentencing tariffs have been formulated to assist a court in passing a just and appropriate sentence, it is still incumbent on a court to take all matters into account and to give an individualised sentence in a particular case. 

10.I have decided that given the relatively young age of the defendant and her role and culpability in the offence, I will sentence her as leniently as I possibly can. 

11.The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1.  The quantity of ketamine involved is 865 g and this falls within the tariff band of 600 to 1,000 g for which a guideline sentence of 12 to 14 years’ imprisonment is suggested. 

12.As I have explained, I will attempt to be as lenient as possible because of the defendant’s relatively young age and circumstances, her previous good character, and her role and culpability in the offence.  These are matters that should not be overlooked when individualising the sentence to be imposed.  It is with the sentencing tariff in mind that a sentence is imposed taking account of the relevant circumstances of the offence and the offender in order to serve the public interest by imposing a punishment that will also rehabilitate and reform the defendant so that upon her release from prison she will hopefully join the community as a law abiding and constructive member of it.  I will adopt a starting point of 12 years’ imprisonment which is 1 year less than what would normally be imposed. 

International element in present case

13.In the present case, the defendant went to mainland China to obtain the drugs in order to bring them back to Hong Kong. The drugs were contained in a white box which was wrapped with sheets of plastic that had to be cut in order for the Customs officer to examine what was inside.  There was no forensic evidence to suggest that the defendant had any physical contact with the drugs or the packaging of them.  It seems to me that she was being groomed and utilised by others to act as a courier of the drugs from mainland China into Hong Kong.  She said in her record of interview that the parcel that she picked up was to be delivered by her to Japan.  From the facts of this case, there is an international element to the offence. 

14.It has been acknowledged as part of the sentencing regime for trafficking in dangerous drugs that the involvement of an international element is an aggravating factor calling for the enhancement of the starting point.  I have addressed the issue where the drug concerned is ketamine in HKSAR v Chan Ka-yiu, HCCC 143/2015, 19 May 2016, unreported, at paragraphs 18 to 39.  I will enhance the sentence in the present case by 6 months’ imprisonment.  The starting point currently stands at 12 years and 6 months’ imprisonment.  

Assistance to the authorities

15.At the time of the defendant’s arrest, she cooperated with the Customs officers.  This was acknowledged by the Customs officers at trial.  She participated in a series of controlled delivery operations and later answered questions in a video recorded interview.  Although the controlled delivery operations were not successful, the fact remains that she cooperated and assisted Customs officers in the further investigation of this case.  She made a number of phone and WhatsApp messages to the person she claimed was to collect the parcel and to the person who arranged the delivery. She participated in three controlled delivery operations.  On the issue of assistance to the authorities, I have not held against her the fact that she sent a message to a friend and deleted messages.  She revealed both matters to Customs officers when asked about them.  I will therefore reduce her sentence for the assistance that she rendered the authorities by 9 months.  This brings the starting point to 11 years and 9 months’ imprisonment. 

Sentence

16.For the foregoing reasons, I sentence the defendant to 11 years and 9 months’ imprisonment. 

Mr John McNamara, counsel on fiat, for HKSAR

Mr Francis Cheng, instructed by Pauline Wong & Co., assigned by Director of Legal Aid, for the defendant