HKSAR v. Tsang Shun Fan

HCCC 224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 224 OF 2016

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

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COURT:

The defendant, Mr Tsang Shun-fan, has been convicted on his own plea yesterday on one charge of trafficking in a dangerous drug.

In the present case, the trial dates were fixed on 15 June 2016, prior to the Court of Appeal’s decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. The defendant’s guilty plea was indicated at the Pre-trial Review held on 2 August 2017.

The Particulars of Offence provide that on 20 November 2015, outside Lok Ma Chau Control Point, San Sham Road, Lok Ma Chau, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.49 kilogrammes of a crystalline solid containing 1.44 kilogrammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The Summary of Facts, which has been admitted by the defendant, provides that on the evening of 19 November 2015, a team of police officers from the Narcotics Bureau were carrying out an operation at Lok Ma Chau Boundary Control Point. The defendant was observed entering and then leaving a lavatory close to the control point. He had with him a bag. He joined the man named Li Kwan-hang (hereinafter ‘Li’) and the two of them walked towards the bus stop.

On being stopped by the police, the bag was found to contain the drugs as set out in the Indictment in this case. On arrest and caution, the defendant said: “I owed credit card payments. So I traffic in dangerous drugs for somebody. Please let me go”.

The man Li (as charged in HCCC 225/2016) had a similar quantity of drugs in the bag he was carrying.

In the bags on each of the men were found wrapping items, including duct tape, similar to that found in the lavatory which the defendant had just visited.

At the time of seizure, the estimated value of the drugs found on this defendant was about HK$440,000.

In a video-recorded interview conducted later, the defendant elaborated on the early admission to the effect that:

(i) He had owed money and an acquaintance, Sam, knew this and introduced him to a man known as ‘Monkey’. Monkey discussed with him the drug delivery and introduced him to the man Li.

(ii) He was told that it involved bringing drugs from the Mainland, strapped to the body with duct tape, and his reward would be HK$1,000.

(iii) Following instructions from Monkey, on 19 November, he travelled to the Mainland where he went to the room of a guesthouse.

(iv) There he found a man with the drugs and equipment for carrying the same. The man, Li, was already there in the room.

(v) Each of these two fixed the drugs onto their bodies and some time later, they went to the Mainland side of the checkpoint.

(vi) Having successfully entered Hong Kong, they went together to the lavatory to discard some of the duct tape and reposition the drugs.

(vii) Had they not been stopped, they were to continue to Kwun Tong and await further instructions.

It is further admitted that by his plea of guilty, the defendant admits to trafficking in dangerous drugs on 19 November 2016.

By way of personal background, the defendant is now 27 years of age. He was born in China in June 1990. He has received education up to Secondary Form 5 level in Hong Kong. Prior to his arrest, the defendant had operated a business as an event planner. He had also worked as a cook. The defendant is single and he resided with his parents and siblings in Sham Shui Po. The defendant does not have any previous criminal conviction.

In mitigation, Mr Michael Arthur, on behalf of the defendant, urged upon me to take into account his guilty plea. I was told that the defendant’s problem came when his event planning business failed. As a result, the defendant fell prey to bad people in the drug trafficking business. In the words of Mr Arthur, the defendant is a good man who has made one very bad mistake in his life.

Mitigation letters from respectively the defendant, his parents, aunt and friends have been submitted to the court. Their contents have been duly noted. However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant would offer little mitigation in serious cases of drug trafficking, which call for severe deterrent sentences in order to protect the public.

It is never a pleasant task to have to imprison a young man in his prime who will have to spend possibly the best years of his life behind bars. I am told that the defendant has enrolled in a distant learning accountancy programme with the Chinese University of Hong Kong. Let us hope that the defendant can use his time meaningfully to turn over a new leaf in the years to come.

The dangerous drug involved in the present case is 1.49 kilogrammes of a crystalline solid containing 1.44 kilogrammes of methamphetamine hydrochloride.

In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the ‘Ice’ drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 for those quantities of heroin. In the Abdallah case, it has held by the Court of Appeal that for trafficking in between 1,200 to 4,000 grammes of heroin, the guideline starting point after trial should be 23 to 26 years’ imprisonment.

In my view, based on the quantity of the narcotic involved (1.44 kilogrammes of methamphetamine hydrochloride), the proper initial starting point for sentence in the present case should be 23 years and 3 months’ imprisonment.

The defendant was caught trying to bring the drug in question from Mainland China into Hong Kong. The initial starting point of 23 years and 3 months’ imprisonment should be enhanced by 2 years for the international element in the present case [See: HKSAR v Abdallah, Supra at paragraphs 42 and 43]. This would take the starting point up to 25 years and 3 months’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 16 years and 10 months’ imprisonment.