HKSAR v. Li Kwan Hang

HCCC 225/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 225 OF 2016

-----------------

-----------------

------------------------------------------------

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

------------------------------------------------

COURT:

The defendant in the present case, Mr Li Kwan-hang, has been convicted on his own plea on one charge of trafficking in a dangerous drug. The guilty plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 6 May 2016.

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 1.45 kilogrammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The Summary of Facts, which has been admitted by the defendant, provides inter alia that in the evening of 19 November 2015, a team of police officers from the Narcotics Bureau carried out an anti-dangerous drug operation at the Lok Ma Chau Boundary Control Point.

At 11.59 pm on the same day, the officers saw the defendant in HCCC 224/2016 (the “1st accused”) entered a toilet near the Control Point. About two minutes later, he came out from the toilet and joined the defendant in the present case. As they were walking to a nearby shuttle bus stand, they were detained for investigation.

A search of the defendant’s sling bag found a waist girdle, two rolls of transparent adhesive tapes and three transparent plastic bags of suspected ‘Ice’ which were later confirmed to be a total of 1.49 kilogrammes of a crystalline solid containing 1.45 kilogrammes of methamphetamine hydrochloride.

Cautioned, he said: “Ah sir, I am a bloody fool, taking $1,500 from somebody and carrying ‘Ice’ dangerous drug for somebody”. A search of his person found two mobile phones and a bus ticket issued on the same day, travelling from Huanggang to Lam Tin.

At the time of seizure, the estimated street value of the ‘Ice’ found on the defendant was HK$441,040.

In the subsequent video-recorded interview of the defendant, he stated the following:

(i) About three months ago, he got acquainted with a male at a bar who knew he was in need of money.

(ii) On a day in mid-October 2015, the male acquaintance introduced him to his partner, ie, the 1st accused.

(iii) He was given the 1st accused’s phone number.

(iv) He was asked to bring dangerous-drug-like stuff from mainland to Hong Kong.

(v) He was also told in detail what he should do on the mainland.

(vi) He had met the 1st accused once to get acquainted with each other.

(vii) At about 9 pm on 19 November 2015, the male acquaintance called him, asking him if he was then free to go to a guesthouse on the mainland to bring back dangerous drugs.

(viii) He crossed the border at about 10 pm and was told to wait for instructions.

(ix) Having received instructions, he and the 1st accused went to a room of the guesthouse where he found six packets of dangerous drug ‘Ice’ and girdles on the bed.

(x) He could see the crystalline solid in the packets and believed they are dangerous drug ‘Ice’.

(xi) He used the girdle to conceal three packets of dangerous drug on his person.

(xii) After entering Hong Kong, he went into a toilet to remove the dangerous drugs from his person.

(xiii) He put the three packets of drugs into a sling bag.

(xiv) He and the 1st accused were arrested outside the toilet.

(xv) When shown the exhibits, he confirmed having used the girdle found in his sling bag to conceal the packets of drugs.

(xvi) He had been given the two rolls of adhesive tapes in case the girdle cannot securely hold the drugs.

(xvii) He and the 1st accused had bought the bus tickets to Lam Tin where they would wait for further instructions.

(xviii) He had yet to receive his reward.

According to information from the Immigration Department, the defendant departed Hong Kong via Lok Ma Chau Terminal at 10.17 pm on 19 November 2015 and returned at 11.52 pm the same day.

By way of personal background, the defendant is 20 years of age. He was 18 at the time of the offence. He was born in China in January 1997. He has received education up to Secondary 6 level in Hong Kong. At the time of his arrest, he was a student of the Open University of Hong Kong. He had also worked as a financial broker. The defendant is single. Prior to his arrest, he was living with his parents, the defendant being the only child of the family.

The defendant has two previous criminal convictions, neither of which is drug related. I should also note that the convictions were recorded after the commission of the present offence.

In mitigation, Ms Juliana Chow informed me that the defendant’s father suffered an injury at work in 2015, and the defendant had to shoulder the financial obligations of the family, and the defendant felt that he had to do something to help the family. Mitigation letters from the defendant, the defendant’s parents, relatives and friends have been handed up to the court, the contents of which 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 a serious case of drug trafficking, which warrants a severe deterrent sentence to protect the public. The defendant cannot, of course, be considered as extremely young at the time of the offence.

The dangerous drug involved in the present case is 1.49 kilogrammes of a crystalline solid containing 1.45 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 was 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 (1.45 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 to 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, which was entered at the first opportunity at the Magistrates’ Court.

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