HKSAR v. Li Sai Man

HCCC 434/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 434 OF 2016

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

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COURT: This is my sentence.

The defendant pleaded guilty before a magistrate of one count of trafficking in dangerous drugs and was committed for sentence at the Court of First Instance, pursuant to section 81B of the Magistrates Ordinance, Chapter 227.

Particulars of the charge are that he, on 2 March 2016, outside TNT Express Worldwide Hong Kong Limited, at the ground floor of Wing Hang Industrial Building, in Kwai Chung, unlawfully trafficked in a crystalline solid which contained 2,610 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

Summary of Facts

Police officers of the narcotics bureau, conducting an operation at Kwai Hei Street in Kwai Chung, intercepted the defendant and another man outside TNT Express at around 5.05 pm on 2 March 2016. The defendant and the man had just completed the formalities for a consignment of humidifiers to be sent to Australia.

The defendant put up a struggle with police officers but was subdued. The defendant was arrested for obstructing police officers. He exercised his right of silence under caution. Upon search, a receipt for the said consignment was found in the defendant’s possession. The dispatched humidifiers were recovered and seized by the police.

The defendant, together with the other man and the humidifiers, were brought back to Tsing Yi Police Station. An initial check was conducted on the humidifiers and one packet of suspected ‘Ice’ was found inside one of the eight boxes. Under caution, the defendant claimed that he helped others to send drugs to Australia for a fee. A more detailed search was conducted and 24 packets of ‘Ice’ were found inside 24 individual humidifiers.

In a subsequent video-recorded interview, the defendant admitted that he went to TNT Express to mail the ‘Ice’ to Australia. A man nicknamed ‘Ah Wai’ with whom the defendant had become acquainted at a pub in early February 2016, asked the defendant if he was willing to mail dangerous drugs for him for a reward of $40,000. The defendant agreed, whereupon Ah Wai provided a SIM card and a mobile phone to the defendant for contact.

On the night of 1 March, Ah Wai called the defendant and asked for his address. At around 6.15 pm that night, a delivery driver handed over an envelope to the defendant. Inside the envelope was $24,000 cash and a piece of paper with the address and contact number to be used in the posting. The defendant also received the eight boxes of humidifiers with the ‘Ice’ inside. The defendant kept them at his home overnight.

In the morning of 2 March, the defendant asked his friend to help him with the boxes. At around 3 pm that day, Ah Wai contacted the defendant and told him to call a van for delivery service and the boxes were loaded into the van upon its arrival. The defendant handed over the $24,000 to his friend and told him to use the details of the sender and receiver in the envelope to fill in the mailing form. The boxes were unloaded after arriving at TNT and the defendant’s friend went to deal with the administrative matters. The cost of sending the drugs came up to $23,929.

The defendant’s friend was released without being charged upon legal advice.

The seized drugs were examined and confirmed to contain a total of 2.61 kilogrammes of methamphetamine hydrochloride. The estimated street value of the dangerous drugs was $860,750.

Previous convictions

The defendant has three previous convictions. The first one was in February 2013, when he was sentenced to the Drug Addiction Treatment Centre for the offence of possession of dangerous drugs. His second conviction was for assault occasioning actual bodily harm in December 2014, when he was again sentenced to the Drug Addiction Treatment Centre. The defendant’s latest conviction was for trafficking in dangerous drugs when he was sentenced, on 15 February 2017, in the District Court, to 2 years’ imprisonment.

Mitigation

The defendant is 23; he was 22 at the time of the commission of the offence. He is single and was educated up to Form 4 level. He used to work as a cook, earning $9,000 per month. He had been unemployed since 2014. In fact, he was also unemployed prior to the present offence and at the time of the commission of the offence.

I am told that the defendant was a drug addict, but since his last admission and then release from the Drug Addiction Treatment Centre. he is now no longer dependent on drugs.

The defendant lives with his family. His grandfather suffers from cancer and needed money for medical treatment. The defendant committed the present offence for a monetary reward. He had confessed to the police in his video-recorded interview, he never received the $40,000 promised reward.

Sentencing tariffs

The sentencing tariffs for trafficking in over 600 grammes of ‘Ice’ is set out in the case of HKSAR v Abdallah Anwar Abbas CACC 304/2008. The guideline starting point for traffickers, after trial, subject to enhancement, for 1,200 to 4,000 grammes of ‘Ice’, is that of 23 to 26 years’ imprisonment.

Enhancement

In a case of HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal laid down guidelines for the enhancement of sentence in trafficking cases that involve an international element. For drugs below 1,000 grammes, the level of enhancement for trafficking between 500 to 1,000 grammes of dangerous drugs is that of 1 to 2 years.

Sentence

The defendant committed the offence for a reward. His role in the trafficking was pivotal, although he was not the mastermind behind the sending of the drugs. A strict mathematical approach towards the guideline tariff sentence would lead to a starting point of 294 months’ imprisonment, that is 24.5 years, and this is the starting point I adopt in the present case.

The defendant was sending the dangerous drugs to Australia as accepted by Mr Cheung for the defendant. The trafficking did involve an international element. Given the amount of dangerous drugs involved, I find that an appropriate enhancement is that of 24 months’ imprisonment. The post-enhancement sentence is therefore 318 months’ imprisonment.

I find that there are no other aggravating features and that the only mitigating factor is the defendant’s timely guilty plea. For that, he is granted the full one-third discount.

The defendant’s sentence after plea is therefore 212 months’ imprisonment, or 17 years and 8 months’ imprisonment.

Totality

The defendant was sentenced on 15 February 2017 to 2 years’ imprisonment in the District Court for trafficking in dangerous drugs. I have to consider the totality of the two sentences. The commission of the trafficking offence in the District Court case was on 24 September 2014, which was about 1½ years before his commission of the present offence. There are no apparent connections between the commission of the two offences except for the defendant’s participation. The dangerous drug involved in the District Court case was ketamine. The quantity involved was 6.13 grammes.

Having taken a step back, I find that 12 months of the sentence in the District Court case should be served consecutively to the sentence in the present case, the balance to be served concurrently.