HKSAR v. Lo Chi Man and Another

HCCC 300/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 300 OF 2016

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

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COURT:

I will deal now with sentence.

The offence in this case occurred on 21 January 2016, and is the result of a surveillance operation at the airport.

The 1st defendant, Lo Chi-man, was seen at about 7.30 in the evening, acting rather suspiciously or nervously, near the carpark at Gate 1 to Terminal 1. He went inside the Airport Building and, first of all, went to the 7th Floor Departure Hall. He then went down the escalator to the Arrival Hall on level 5, where he stood at a 7-Eleven convenience store, and made a call on his mobile.

A few minutes later, the 2nd defendant, was seen to walk up to the 1st defendant. The 1st defendant handed the 2nd defendant a travel bag, and they then walked a few paces together before they were stopped.

The 1st defendant, when he was asked what was in the bag, made out that he had no idea. The 2nd defendant similarly replied that he had no idea, and then contradicted himself by saying ginseng.

The bag was searched shortly afterwards, and two biscuit tins were found. These were X-rayed before they were opened.

Each tin had three packs of “Ice”, as it turns out, inside, the narcotic content of which weighed 2.95 kilogrammes, with an estimated street value of $927,000-odd. The 1st defendant, in a later interview, gave a false story about his belief that he was carrying ginseng, but much to his credit, he abandoned this account in favour of speaking the truth. This was that he had been asked to deliver these drugs to the 2nd defendant.

In due course, he provided a total of 5 statements in which he expressed his desire to speak the truth and give evidence against the 2nd defendant, who had led him into this venture in the first place.

The sentencing guidelines under HKSAR v Tam Yi Chun [2014] 4 HKC 256, adopted the guidelines set out in HKSAR v Abdallah [2009] 2 HKC 197. These guidelines now relate to “Ice” as much as they do to cocaine and heroin, and relate to quantities over 600 grammes.

In this case, the weight was four times that amount. Present quantity of 2.95 kilogrammes, under the guidelines, falls into the band between 23 and 26 years’ imprisonment, which would apply after conviction, following a trial. In addition, this was a cross-border trafficking offence, which attracts some enhancement of sentence.

For the present case, the sentence which is appropriate would be 24 years and 9 months. Bearing in mind totality, I am proposing only to enhance by 3 months to 25 years. That means that if there had been a conviction after trial by jury, the sentence would have been 25 years’ imprisonment.

The 1st defendant, who is now aged 25, began to provide information against the 2nd defendant in May this year, and was prepared to give evidence against him if necessary. No doubt, as a result of that information provided by the 1st defendant, the 2nd defendant then very sensibly pleaded guilty in the face of an avalanche of evidence against him. It is apparent that the 1st defendant has earned a very substantial discount to his sentence.

Normally, this would be in the order of 45 per cent. But I am satisfied, in his case, that I can cut the sentence he would have received, if he had been convicted by a jury, by half. Not only has he provided information, but I can accept that this defendant found himself in a situation where he was effectively being blackmailed to take part by the gang responsible for these drugs.

The 1st defendant was told that the 2nd defendant was a member of a triad society, and that harm would come to his family if he did not agree to take these drugs to the airport. I should emphasise that this is quite clearly not a case where the defence of duress arose, and nor indeed is it suggested. The 1st defendant had applied for a job through a certain website, and had agreed to do unlawful cross-border smuggling. He had taken what he believed to be smuggled goods to the airport on a previous occasion, but he was so concerned about what he has been asked to do that, when he was approached to do this again, he had refused.

It was then that he was informed that what he had taken previously were, in fact, drugs, that his fingerprints were on the tins, and that his family would be in trouble, because they could be traced from the defendant’s ID card, which he had allowed the mainland gang to copy. And indeed, the 2nd defendant had a photographed copy on his mobile phone. In fact, the 1st defendant had got himself into a situation in which he had acted illegally in the past, and was now being blackmailed with threats to his family, into doing the same thing again.

Furthermore, of course, he had ample time in which to tip off the authorities, if he had not wanted to take these drugs to the airport.

For these reasons, the defence of the 1st defendant, have rightly appreciated that this was not a case of duress in the legal sense of that word. But because I am satisfied that there was some coercion, I am proposing to reduce the sentence in total by half.

The 2nd defendant’s plea of guilty is really the only mitigation of any substance as again has been rightly anticipated by his counsel. In a case of this gravity, his previous clear record and his age, which now is still only 22, cannot avail him, and despite the lateness of his plea, the 2nd defendant will receive a full discount of a third, as, fortunately for him, the Court of Appeal’s decision in HKSAR v Ngo Van Nam [2016] HKLRD 1, to the effect that a late plea should lead to a reduced discount, was given well after the earliest opportunity this defendant had to plead guilty.

Lo Chi-man, would you stand please? Your sentence, having regard to your plea and the assistance you have given, is 12 and a half years’ imprisonment. Thank you, sit down.

Tsui Kwan-yin, would you stand please? Your sentence, having regard to your plea of guilty, is 16 years and 8 months’ imprisonment. Please sit down.

I am just going to make one comment for the Correctional Services Department. It is important that the file for these two defendants is noted in this way, that these two men should not be allowed to be together or in close proximity whilst they are in custody. Now, it is not for me to dictate where they are kept, but they should be kept well apart.

Yes, thank you.