HKSAR v. Cai Jin Song

HCCC 97/2019

[2019] HKCFI 2091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 97 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This is a case of importation from the mainland by a motor vehicle through Lok Ma Chau Control Point on 11 July 2018. The defendant, who is aged 43, was the sole passenger in a 7-seater private vehicle that had been hired for the purpose but the driver was completely unaware of the importation of drugs.

When the vehicle was searched, Customs officers found a box inside which were four ziplock bags containing a crystalline solid which in turn contained 1.3 kilogrammes of methamphetamine hydrochloride, which is commonly known as ‘Ice’.

A further search of the defendant’s backpack revealed a solid containing 1.46 grammes of ‘Ice’. That was the subject of Charge 1. The larger amount was in Charge 2. No doubt the smaller quantity was for the defendant’s own use as he was in the habit of taking ‘Ice’ but as an importation it was still, of course, trafficking.

Movement records for the defendant show that he was a frequent traveller across the border. In the three months between 11 April and 11 July 2018, he had been over the border and back on 13 occasions and it appears that he had no employment.

The defendant indicated after his arrest that he would be willing to conduct a controlled delivery of the drugs. He in fact received a number of incoming calls in the presence of Customs officers whilst in their custody but despite this, the prosecution has agreed to hand back all four mobile phones to the defendant when these were, quite clearly, connected to the offence of trafficking or at least some of them were. It seems that no proper investigation has been made into the telephone numbers recorded.

More importantly, the defendant had offered to co-operate with them in a controlled delivery and yet the Customs officers took several hours over paperwork which, on any view, must have made a controlled delivery quite impossible. As a result, through no fault of the defendant, it is quite apparent that no useful assistance was ever provided to the authorities. This was either by reason of ineptitude or sheer laziness on the part of the Customs because it was their actions which made a controlled delivery impossible. And this is happening in case after case after case where the Customs are involved, and it is about time the investigation department was shaken out of its indolence. It is all very well catching the couriers, but someone further up the chain would be more important.

I have read the mitigation submission which was very helpfully provided to me by counsel for the defence, Ms Lai. This indicates that the defendant was a user of ‘Ice’ at the time of the offence and he came to be tempted into bringing ‘Ice’ over the border by the rewards which were offered from this activity.

The guidelines set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 indicate that for amounts in excess of 600 grammes of ‘Ice’, the sentencing bands in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 should be followed.

Well, here, as I have said, the total quantity of ‘Ice’ in Charge 2 was 1.3 kilogrammes. This falls within the band for 1,200 to 4,000 grammes for which the Court of Appeal have set sentencing tariffs of between 23 and 26 years’ imprisonment after trial.

Accordingly on this basis, it seems to me that a starting point of 23 years’ imprisonment would be appropriate which in turn needs to be enhanced. The guidance in HKSAR v Chung Ping Kun [2014] 6 HKC 106 indicates an enhancement by 2 years for the cross-border element involved in this case.

Yes, would you stand, please? A sentence of 25 years’ imprisonment is what you would have received if you had not pleaded guilty at the Magistrates’ Court and if you had not tried to assist in a controlled delivery. The Customs officers made that controlled delivery quite impossible by the length of time they took with paperwork but you will receive full credit for at least offering the co-operation that you did.

You also receive full credit for your plea of guilty at an early stage. For the small amount of ‘Ice’ comparatively in Charge 1, the starting point is 3 years and your sentence will be 21 months’ imprisonment. For the much larger amount in Charge 2, the starting point that I shall take will, with the enhancement, be 25 years but it is reduced, for the reasons I have given you, to 15 years’ imprisonment.

Those two sentences are to run concurrently which means your sentence is 15 years’ imprisonment.