HKSAR v. Chan Kai Ming and Another

HCCC 370/2018

[2019] HKCFI 2312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 370 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

In this case, both defendants pleaded not guilty to unlawfully trafficking in dangerous drugs. On or about 3 April 2018 in Hong Kong they unlawfully trafficking in namely 4.98 kilograms of a crystalline solid containing 4.87 kilograms of methamphetamine hydrochloride, the drug commonly known as ‘Ice’.

The drugs were imported into Hong Kong from Malaysia by DHL using air freight, hidden in big jars of chilli sauce.

Both defendants were convicted unanimously after a trial by jury.

The 1st defendant arrived in Hong Kong on 1 April 2018 on a one-way ticket and rented a hotel room in Kowloon. A parcel of food stuffs was then shipped to him by DHL Air Freight from Kuala Lumpur, Malaysia, the following day. It was inspected by Customs and Excise upon arrival and they found packets of ‘Ice’ concealed in large jars of chilli. There were three packets in each jar and they weighed a total of 4.98 kilograms.

The estimated street value of that ‘Ice’ at that time was $3,456,120. The Customs and Excise confiscated the box from DHL and conducted a controlled delivery operation. After a customs officer, pretending to be a DHL courier contacted the 1st defendant by calling the consignee’s telephone number according to the waybill, it was arranged for the parcel to be delivered to the 1st defendant at about 5 o’clock on 3 April 2018 in the facility of his hotel which was, in fact, the consignee’s address.

Other customs officers were sat in the lobby of this hotel prior to delivery, posing as hotel guests. They observed the 1st and 2nd defendant sit outside the hotel on a bench smoking and chatting, not long before the appointed delivery time.

The 1st defendant was expecting that parcel and he signed for that parcel once the Customs and Excise officer, disguised as a courier, was satisfied that he was the named consignee when his telephone number matched that of the consignee’s details. He was arrested after he took possession of the box. The 2nd defendant who was nearby, was also arrested.

Both at various times, not long after their arrest, told the Customs and Excise officers that they did not know each other or had just met one another in Hong Kong. However, an examination of a phone and the photo albums in that phone uncovered photographs of them both overseas together, prior to this Hong Kong trip.

The 2nd defendant had arrived in Hong Kong on 20 March 2018. Both then admitted that they had been friends in Malaysia and had been on several overseas trips together. A search of the 2nd defendant’s guesthouse room revealed two similar DHL boxes containing similar items, foodstuff. No drugs were found in his room, however a search of both defendant’s mobile phones and the boxes established a connection between the defendants, Malaysia and the alleged shipper of the 1st defendant’s box.

The Customs and Excise officer also found in the 2nd defendant’s room, a large electric bag sealer and many receipts. Amongst the receipts was a $38 receipt from a plastic bag shop for bags, 7 by 10.

There were no such bags found in the 2nd defendant’s room. However, “7 x 10” resealable plastic bags were found in the 1st defendant’s room, 94 of them. With these bags was a small digital electronic scale, a brand new cutter, 11 plastic gloves, altogether in a rucksack. These are items commonly used by drug traffickers packing drugs.

The prosecution’s case is that they were both acting together in a joint criminal enterprise and involved in the importation of the drugs in that DHL box addressed to the 1st defendant. By their verdict, the jury obviously believed that to be the truth.

The defendants had given explanations and evidence behind the boxes sent to them. The prosecution had described the explanations as flying in the face of common sense.

The 1st defendant is a Malaysian National and now aged 35 years old. He lives with his family in Kuala Lumpur and works as a “Grab” Taxi driver on a part-time basis as well as trying his hand at real estate. His monthly income is about 3,500 Ringgit. He has also tried his hand at computer repair as well as import and export between China and Malaysia.

He has a clear record in Hong Kong which carries little weight, considering he is a Malaysian National. I have had a full picture of his background from his evidence. There’s not much more that Mr Yim can say on the 1st defendant’s behalf in mitigation.

The 2nd defendant is also a Malaysian National and 34 years old. He lives on his own in Kuala Lumpur and works also as a “Grab” Taxi driver, earning about 4,000 Ringgit a month. He too has a clear record in Hong Kong. This was his first trip to Hong Kong.

The evidence is that he met the 1st defendant several years ago when they were both working together. The evidence is they travelled to places like Thailand twice together and Johor Bahru. His evidence is that the purpose of those trips were to worship Gods. Similarly, there is not much Mr Kwan can say on behalf of the 2nd defendant in mitigation.

The Court of Appeal has set down guidelines for sentencing those who traffic in ‘Ice’ in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that authority the starting point for trafficking between 4,000 grammes and 15,000 grammes of ‘Ice’ is between 26 and 30 years’ imprisonment. Mathematically speaking, 4,870 grammes of ‘Ice’ would attract a starting point of 26 years and 4 months.

It is well-established that the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach. And that the mere fact that the defendants were only drug mules or couriers, is not a good reason for departing from that mathematical approach. I have referred myself to the authority of HKSAR v Kilima Abubakar Abbas [2018] HKCA 602.

There is an aggravating factor here and in HKSAR v Chung Ping Kun [2014] 6 HKC 106, the Court of Appeal laid down some guidelines on enhancing sentences for an international element where substantial quantities of drugs are imported into Hong Kong.

The Court of Appeal considered a broad guideline and held that where between 500 and 1,000 grammes is involved, then an enhancement of between 1 to 2 years is appropriate. They did not consider a guideline for amounts higher than 1,000 grammes. Based on this authority, I consider the enhancement for the international element in the present case should be one of 2 years.

I have considered the facts of the case, the quantity of the drugs and the sentencing guidelines. Defendants, please stand up.

I will take a starting point of 26 years and 4 months. The defendants were jointly charged and equally culpable. I make no distinction in the roles that they played in this offence.

I will increase the starting point by 2 years to reflect the international element of importation. The starting point for this offence therefore becomes one of 28 years and 4 months.

Both defendants were convicted after trial and I see no other mitigation or factors that mean the defendants are entitled to any discount to that starting point. Therefore, both the 1st and 2nd defendant are sentenced to 28 years and 4 months’ imprisonment.