HKSAR v. Lee Kok Dun, Gordon

HCCC 136/2018

[2018] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 136 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the facts

The accused faces two charges of possession of a controlled chemical, contrary to section 2A(1) of the Control of Chemicals Ordinance, Cap 145.

On 8 April 2017, police officers noticed the accused alighting from a vehicle on Luen Fat Street, Fanling, and walking towards another vehicle which was parked in a car park nearby. That vehicle had entered the car park the day before.

Then the accused was seen pressing a car key which unlocked that other vehicle. While the accused was trying to open the driver’s door to that vehicle, the police intercepted him. At the time, the accused tried to flee, but was subdued.

A search of the bag carried by the accused revealed 1.85 kilogrammes of a solid containing 1.75 kilogrammes of pseudoephedrine, the subject matter of Charge 1.

The initial response of the accused was that he only came to drive the second vehicle away and he did not know what was inside the packet found in his bag.A further search was conducted on that second vehicle and a total of 23 plastic bags containing 47.98 kilogrammes of a solid containing 44.89 kilogrammes of pseudoephedrine were found. This is the subject matter of Charge 2.

Pseudoephedrine is a substance which could be used as a precursor for manufacturing methamphetamine hydrochloride, commonly known as ‘Ice’. It is admitted that 49.83 kilogrammes of a solid containing 46.64 kilogrammes of pseudoephedrine could produce between 21.4 kilogrammes and 32.1 kilogrammes of ‘Ice’.

After his arrested, the accused appeared before a magistrate and after a number of hearings, he was committed for sentence on 23 April 2018. However, when his case was brought up in the Court of First Instance, he indicated that he might apply to reverse his pleas. For that reason, the matter was adjourned twice, but on 8 October 2018, the accused confirmed his pleas and was convicted of the two charges.

The accused’s background and mitigation

The accused is 48 years old, divorced with a son aged 26. He was educated to secondary school level in England and in 1995, he returned to Hong Kong, reportedly working as a transportation worker.

The accused has two previous criminal convictions. The first was in 1988 when he was fined for the offence of assault occasioning actual bodily harm. Then, in 2007, he was sentenced to 2 years’ imprisonment for dealing with goods to which the Dutiable Commodities Ordinance applies. As the accused’s two previous convictions are rather dated and are of a different nature, I am not going to regard those as a factor which would require any upward adjustment in this sentencing exercise.

Letters from the accused himself, the accused’s 74-year-old mother, his son and his cohabitee were submitted to the court. All spoke of the accused’s remorse and all pleaded for leniency on the accused’s behalf. In particular, the accused’s mother is eager to have her son back before it’s too late for her.

In mitigation, Mr Chang for the accused explained that the accused committed the offence as he was told by his friend that the chemical would be sold for medicinal use. Hoping to earn $20,000 from the deal, the accused agreed to join as he was planning to get married at that time. Of course, by way of his admission of the Summary of Facts, the accused now admits that he either knew or had reasonable grounds to believe that the chemical was to be used for the production of a dangerous drug. In any event, given the circumstances in which the accused was found in possession of the pseudoephedrine, I reject his claim that he was only a party to a suggested deal of re-selling the chemical for medicinal use.

Sentencing considerations

The courts of Hong Kong take a very serious view of dangerous drugs offences and the possession of a substance which is a precursor to the manufacturing of a dangerous drug. It is particularly significant that pseudoephedrine is a precursor to the manufacture of ‘Ice’ for ‘Ice’ is a savagely addictive drug. The penalties for trafficking in the quantity of ‘Ice’ which could be produced from the chemical in these two charges would be about 25 years’ of imprisonment. That is the penalty for trafficking in that amount of ‘Ice’. A person who was convicted of manufacturing that quantity of ‘Ice’ could face an even more severe sentence.

In HKSAR v Ho Ka Ming CACC 425/2009 (unreported, 30 June 2010), the applicant was found to be carrying with him about 2.7 kilogrammes of a solid containing about 1 kilogrammes of pseudoephedrine hydrochloride which could be used to produce 0.5 to 0.75 kilogrammes of ‘Ice’. The Court of Appeal conceded that a starting point of 6 years was appropriate and observed that if the applicant knew that the chemical was to be used for the manufacturing of ‘Ice’, the sentence would be close to the maximum of 15 years.

In HKSAR v Lan Xianxin [2015] 5 HKLRD 980, the Court of Appeal reviewed a number of cases in respect of sentencing in cases of importing, exporting or possession of pseudoephedrine. In the case of Lan Xianxin, the 1st applicant arrived in Hong Kong by air from Egypt and took two suitcases to a place in Hong Kong. He then gave them to another person who passed one of the suitcases in question to the 2nd applicant. The two suitcases contained a total of 11.89 kilogrammes of pseudoephedrine. The Court of Appeal held that a starting point of 7 years for the 1st applicant who had imported the entire 11.89 kilogrammes of pseudoephedrine was not manifestly excessive. For the 2nd applicant, he was in possession of 5.63 kilogrammes of pseudoephedrine and was given a starting point of 4 years.

In the judgment, the Court of Appeal observed:

“This Court considers that any person importing or in possession of raw materials capable of being used in the manufacture of dangerous drugs, same as those trafficking in a dangerous drug, should be given a heavy sentence, since such crimes cannot otherwise be deterred. The Legislature has also recognized the seriousness of the crime of importation and possession of pseudoephedrine, and provided for a maximum penalty of a fine of $1 million and imprisonment for 15 years.”

That is at paragraph 33, and then paragraph 34:

“This Court cannot overlook that condoning the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is equivalent to condoning the offence of manufacture of dangerous drugs, thereby posing great harm to the society. Successful deterrence of the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is also equivalent to successful reduction of production of dangerous drugs. The trial judge’s view that the offences committed by the applicants ‘posed great potential harm to the society’ is absolutely reasonable, which we agree.”

At paragraph 37 of the judgment, the Court of Appeal pointed out that the pseudoephedrine in that case was very likely to be bound for the Mainland. In my view, that is also very likely to be the case here and the fact that the manufacturing of ‘Ice’ is to take place in the Mainland is of no comfort since the ‘Ice’ manufactured would likely find its way back to Hong Kong.

In this connection, the Court of Appeal further observed at paragraph 39 of the judgment that:

“Incidents of Mainlanders importing pseudoephedrine from overseas through Hong Kong are common, which explains why large quantities of ‘Ice’ are being manufactured in the Mainland and being exported, including to Hong Kong. This situation must be stopped. If there is information showing a rising trend of similar crimes, in sentencing, the court might need to set out sentencing guidelines corresponding to the quantities of pseudoephedrine in question, with a view to eradicating such crimes, so as to reduce the prevalence of ‘Ice’.”

Sentencing in this case

In the instant case, the total amount of pseudoephedrine is 46.64 kilogrammes, which is about four times the total amount in HKSAR v Lan Xianxin. Given the maximum sentence for the offence is 15 years, a strictly mathematical approach to sentence is plainly inappropriate.

Although, there is no evidence to show the accused’s knowledge about making ‘Ice’ from the pseudoephedrine seized and the accused’s stance is that he only had reasonable grounds to believe that such would be the case, the conduct of the accused in this case is very serious for he was in possession of a very large quantity of the controlled chemical. If it had been shown that the accused actually knew of the manufacturing of the dangerous drug from the pseudoephedrine, his culpability would be even greater and that would no doubt be an aggravating factor which would lead to an upward adjustment of the sentence I am going to impose in this case.

There are two separate charges involving two acts of possession on the part of the accused. However, I consider the just approach to sentence is to add the two quantities together to arrive at an overall starting point.

As mentioned above, the accused had, at one stage, indicated that he might apply for a reversal of his pleas but that did not materialise in the end. Although some court time was wasted on that, the accused eventually confirmed his earlier guilty pleas and I am prepared to give him the full one-third reduction.

Having considered all the relevant facts of this case, I take the view that the appropriate overall starting point for the two charges is one of 10 years. Now, while I understand the love and concern of the accused’s family members, especially the plight the accused’s elderly mother is now in, these are not matters which I could take into account in reducing the sentence in this type of serious offences.

It follows, after applying a one-third reduction for the accused’s guilty pleas, that the sentence is 6 years and 8 months. As I have combined the weight of pseudoephedrine in the two charges when arriving at the overall starting point, I order that the sentence be one of 6 years and 8 months for each of the 1st and the 2nd charge and that both sentences are to run wholly concurrently.

The resulting sentence is, therefore, one of 6 years and 8 months.