HKSAR v. Tan Kian Yap

HCCC 94/2019

[2019] HKCFI 2102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 94 OF 2019

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

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COURT:

The defendant, Tan Kian-yap, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence. Now, I will just repeat the facts that you have admitted.

The defendant was intercepted at the Customs Arrival Hall of the Hong Kong Macau Ferry Terminal for clearance. Upon a personal search, a hard object wrapped by adhesive tape was found underneath the insole of each of the shoes the defendant was wearing. These objects were later found to be:

(1) one packet containing 303 grammes of a mixture containing 258 grammes of heroin hydrochloride; and

(2) one packet containing 258 grammes of a mixture containing 222 grammes of heroin hydrochloride.

The defendant was also found to be in possession of two mobile phones with SIM cards, HK$1,745, Macau currency $15, and MYR145.7.

Upon arrest and under caution, the defendant said, among other things, that the two objects were drugs and that he had brought them for others. He would rent a hotel room in Hong Kong and use WeChat to contact the recipient, and he was promised a reward of MYR10,000, approximately HK$18,938.

A video-recorded interview was conducted with the defendant later. The defendant described how he was in debt and how he was asked to bring drug to Hong Kong for a reward of the MYR10,000 and that was through a contact he acquainted on Facebook. He flew from Kuala Lumpur to Macau and then took the Macau ferry to Hong Kong. He was instructed to rent a hotel room in Hong Kong and then inform the contact who would in turn get the recipient to contact him.

The estimated street value of the drug was about HK$494,802.

Background and Mitigation

The defendant is a 27-year-old Malaysian with no criminal conviction in Hong Kong. He has attained Form 5 education level. Defendant is divorced and he has a daughter who is now about 4 years old and lives with his ex-wife.

Mr Carl Yuen, mitigating on the defendant’s behalf, informs me that defendant’s elder brother committed suicide when the elder brother failed to repay debts to loan sharks. The defendant lost his job as a barber due to the harassment by those loan sharks. Because of financial difficulties, the defendant was recruited by someone called “Santa Claus” through Facebook to act as a drug mule.

The defendant was warned there was a 50-50 chance that he would be caught and the defendant knowingly took the risk and brought the drug into Hong Kong. He is very remorseful and while in gaol, he gave assistance to Father John Wotherspoon.

Father Wotherspoon wrote to the court, confirming the assistance given by the defendant, saying it was the defendant’s specific information about his recruiter that enabled a media investigating team, R.AGE of The Star, to find the online recruiter. The team released six written reports and a number of videos captioned “The Malaysian Drug Trade” which are available on a website. The defendant also wrote a letter, warning others not to take drugs to Hong Kong, and his letter was forwarded to this R.AGE team by Father Wotherspoon and posted on the website. Father Wotherspoon could not say the defendant’s information had led to an arrest in Malaysia but such information had greatly helped the authorities with their ongoing investigations.

Mr Yuen referred to two authorities. One is HKSAR v Rwakibale Aheebwa Peter. That is CACC 171/2017, and the other one is HKSAR v Dewi Ilmayanti and Another. That is CACC 370/2015, and Mr Yuen asks this court to give credit to the defendant for his assistance given to Father Wotherspoon.

Now, trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be fined $5 million and to imprisonment for life.

The Court of Appeal in the case of R v Lau Tak Ming [1990] HKLR 370 set down guidelines for sentencing traffickers trafficking heroin hydrochloride. The defendant trafficked a total of 480 grammes of heroin hydrochloride. For an amount between 400 and 600 grammes, the appropriate starting point is between 15 to 20 years. I am of the view that in all the circumstances of this case, a starting point of 17 years is appropriate.

In the case of HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal held that if there is an international element in trafficking, there should be an enhancement of at least 2 years for drugs above 1,000 grammes. For drugs below 1,000 grammes, the extent of enhancement is at the discretion of the sentencing judge.

In HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal suggested the following broad guidelines of enhancement: up to 250 grammes, 6 months; between 250 and 500 grammes, 6 months to a year; between 500 and 1,000 grammes, 1 year to 2 years.

Having considered the amount of narcotics, that is 480 grammes, I am of the view that the appropriate enhancement is 1 year. So using a starting point of 17 years with an enhancement of 1 year for the international element, the appropriate sentence after trial is one of 18 years’ imprisonment.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. The sentence would therefore be 12 years. Apart from his plea, I accept that the defendant has given information to Father Wotherspoon, which the latter passed on to the investigation team in Malaysia, with the result mentioned in Father Wotherspoon’s letter. The reports and videos “The Malaysian Drug Trade” will no doubt educate and warn viewers against trafficking dangerous drug to Hong Kong.

In the case of Rwakibale, the Court of Appeal confirmed the approach taken in the case of HKSAR v Kilima Abubakar Abbas. That is CACC 143/2016. That is a token discount of no more than 3 months to be given for a defendant’s participation in Father Wotherspoon’s campaign.

In the case of Dewi, the Court of Appeal said in paragraph 74:

“Assistance to authorities entitles a defendant to an additional discount beyond the one-third for the plea of guilty. Where that assistance is only the provision of information that is of practical use but does not result in successful law enforcement action, the appropriate discount will usually be in the range of 33.3 per cent to 40 per cent.”

I accept Mr Yuen’s submission that the assistance rendered by the defendant amounts to “provision of information that is of practical use but did not result in successful law enforcement action”, and I will give the defendant a total discount of about 38 per cent, inclusive of the discount given for his guilty plea. So using a starting point of 18 years, that is 216 months, a discount of 38 per cent would amount to 82 months. So deducting 82 months from 216 months, the result is one of 134 months which is the same as 11 years 2 months.

So putting it another way, the court is giving the defendant a further 10 months’ discount on top of the one-third discount given for his plea. So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 11 years and 2 months’ imprisonment.