HKSAR v. Lin Chi Man and Another

HCCC 376/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 376 OF 2016

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

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COURT: The 1st defendant, Lin Chi-man, and the 2nd defendant, Lin Shu-kei, were charged for one count of conspiracy to traffic in a dangerous drug, together with a person named Cheung Chi-yuen. The case was listed for trial on 28 September 2016 and the trial was fixed to be started on 4 May 2017.

The 1st defendant informed this court, by way of a letter, indicating his plea of guilty on 23 April 2017, and on the first day of the trial, he pleaded guilty before me and his sentence was ordered to be dealt with after the trial of the 2nd defendant.

A jury was empanelled for trial of the 2nd defendant and the jury unanimously convicted him as charged, yesterday, that is 15 May 2017. I adjourned the sentence of the 2nd defendant to be dealt with together with the sentence of the 1st defendant today.

On 27 November 2013, Cheung Chi-yuen arrived at Hong Kong International Airport from Abu Dhabi. He was stopped and searched by customs officers and 11.91 kilogrammes of a solid containing 10.25 kilogrammes of cocaine was found concealed in items inside his suitcase.

The estimated value of the cocaine amounts to over HK$16 million.

Cheung Chi-yuen was arrested and charged with trafficking in a dangerous drug. He subsequently pleaded guilty to the offence and was sentenced to 20 years’ imprisonment. In that case, HCCC 179/2014, the learned sentencing judge adopted a starting point of 28 years’ imprisonment and enhanced it to a total of 30 years for the international element. Taking into account his guilty plea, the sentence was reduced to 20 years.

After he was sentenced, Cheung Chi-yuen provided several non-prejudicial statements to the police implicating the 1st defendant and 2nd defendant as part of the conspiracy to traffic drug in relation to his importing the relevant cocaine into Hong Kong.

He said the 2nd defendant recruited him through a woman named “Kwai Che” to go bring the suitcase from Abu Dhabi to Hong Kong. The 2nd defendant had provided him with the air tickets, an empty suitcase, a mobile phone and US$1,300 to be used for the trip. The 2nd defendant also promised to pay him HK$25,000 as his reward. Throughout his journey to and from Abu Dhabi, the 2nd defendant had been giving him various instructions.

Cheung Chi-yuen said the 1st defendant handed to him, in Abu Dhabi, the suitcase containing the cocaine which was brought by the 1st defendant from Brazil. He then brought the suitcase of drugs back to Hong Kong.

The 1st defendant is 34 years old. He was born in Hong Kong and had completed Form 3 education in Hong Kong. He is single and his parents were passed away. He has two brothers. He has been suffering from diabetes and needs to have insulin injection four times a day. He has written a letter to this court saying that he is now very remorseful and prepared to face the consequence. He has been studying while he was in custody and he hopes he could turn a new leaf to his life after his release.

The 1st defendant has six previous criminal convictions, five of which are minor offences committed before 2006. The last offence convicted was trafficking in dangerous drug which he was sentenced on 15 December 2015 for 16 years’ imprisonment. In that case, with case number HCCC 337/2015, the 1st defendant received a parcel with 1.1 kilogramme of cocaine inside.

Mr Lau, counsel for the 1st defendant, submitted that this court should consider adopting the same starting point for sentencing the 1st defendant as the one adopted for the sentencing of Cheung Chi-yuen.

Having acknowledged that the 1st defendant may not be entitled to the full one-third discount for his guilty plea as the present case was listed for trial after the judgment of the Court of Appeal case HKSAR v Ngo Van Nam, CACC 418/2014, he urged this court to give a lenient discount in view of the fact that the new principles for giving discount for guilty plea was promulgated only shortly before the listing of the trial.

Mr Lau also asked this court to consider the totality principle and to order the sentence of the 1st defendant in this case partially concurrent to the sentence he is now serving for the other trafficking case.

Conspiracy to traffic in dangerous drug is an offence not less serious than actual trafficking. In some cases, it would be even more serious, depending on the facts of individual cases. In the present case, the role played by the 1st defendant was similar to that of Cheung Chi-yuen and I am of the view that the starting point of 28 years adopted by the learned sentencing judge was entirely appropriate in view of the quantity of cocaine involved. Also, the enhancement of 2 years for international element is appropriate, having regard to the Court of Appeal case HKSAR v Chung Ping Kun, CACC 85/2014, dated 2 July 2014.

As fairly acknowledged by Mr Lau, the 1st defendant is not entitled to the full one-third discount for his guilty plea. Having regard to the fact that the new approach adopted by the court has commenced only shortly before the listing of the trial in this case, the appropriate discount to be accorded to the 1st defendant for his plea should be, in my view, 25 per cent. Apart from his plea of guilty, I can see no other valid mitigating factors.

In the circumstances, the sentence of the 1st defendant for the present charge would be 22½ years.

The 1st defendant is now serving a sentence of 16 years’ imprisonment. If the present sentence of 22½ years is to be served wholly consecutively, the total sentence for the two offence would be 38½ years’ imprisonment and the notional starting point for that sentence would be way above 50 years. This is manifestly excessive, even taking into account the fact that the two offences were separate offences and they were committed within a relatively short period of time.

In my view, the appropriate overall sentence for the two offences, taking into account all the circumstances, should be 28 years’ imprisonment. To achieve that result, I order that 5½ years of the sentence in HCCC 337/2015 to run consecutively to the present sentence. The rest of the sentences are to run concurrently, making a total of 28 years’ imprisonment for both offences.

The 2nd defendant is 34 years old. He was born in Hong Kong and completed Form 2 here. He has a son, now 12 years old, and he was divorced in 2012. He married again in 2015. His present wife is now residing in Mainland China. His son is under the care of the 2nd defendant’s mother who is now 68 years old. According to Ms Lee, counsel for the 2nd defendant, the defendant’s son is suffering from G6PD disease and ADHD.

Regarding the sentence of the 2nd defendant, although he was apparently in an upper level than Cheung Chi-yuen in the conspiracy, in the evidence, there was a real boss named “Eddie” behind, as mentioned by the 1st defendant, and Eddie was not the 2nd defendant. I am not prepared to enhance any sentence against the 2nd defendant for his role in the conspiracy.

In the circumstances, I would adopt the same starting point for the sentences of the 1st defendant and Cheung Chi-yuen for the 2nd defendant, and equally, there will be an enhancement of 2 years’ imprisonment for the international element involved. As the 2nd defendant is convicted after trial, there should be no discount.

The 2nd defendant is therefore sentenced to 30 years’ imprisonment.