HKSAR v. Dong Juan

HCCC 371/2018

[2019] HKCFI 2489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 371 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 30 April 2018, the police mounted an anti-narcotics operation in premises in Tsuen Wan. Shortly before midnight, Dong Juan (hereafter “the accused”) entered the premises and was intercepted by the police. She was charged with trafficking in dangerous drugs and brought before a magistrate. On 26 November 2018, the accused was committed for trial to this court on a charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134, namely 55 grammes of a solid containing 50.1 grammes of methamphetamine hydrochloride.

An indictment was filed reflecting the foregoing charge in proceedings in this court at a case management hearing. Counsel for the accused indicated a plea of guilty to the charge and the matter was then adjourned for plea and sentence to this court. The case management hearing was on 20 May 2019. At that hearing, Justice S T Poon ordered a plea and sentence hearing today.

The accused has now pleaded guilty to the indictment and admitted a set of facts.

Following the interception of the accused on 30 April 2018 in the premises in Tsuen Wan, she was found to have in her possession a red packet containing 27.6 grammes of a crystalline solid containing 25.1 grammes of methamphetamine hydrochloride and a further packet containing 27.4 grammes of a crystalline solid containing 25.0 grammes of methamphetamine hydrochloride. The accused was arrested and cautioned and told police that she carried the packets containing the drugs for a reward of $1,500.

She submitted to a video-recorded interview under caution. The accused related a story of acting as a result of a perceived threat to herself and her family and that she agreed to carry things to the mainland. On this occasion, she was approached to go to the mainland to pick up something. She crossed the border from Hong Kong and, in the result, picked up the red packets containing the drugs, the subject of the charge, and carried those across the border back into Hong Kong. In the interview, she claimed she did not know what it was in the relevant packets. However, she now admits the elements of the offence and the Summary of Facts. As a result, she admits being in knowing possession of methamphetamine hydrochloride, the subject of the charge, for the purpose of unlawful trafficking.

Background of the Accused and Matters Advanced in Mitigation

The accused was born in Mainland China in 1973 and is 45 years of age today. She is a person of no previous convictions. She was educated up to Form 5 in Mainland China. The accused moved to Hong Kong in 2008. Since then she has been employed in a variety of occupations. She is married but separated and has a 25-year-old and a 10-year-old son and a 7-year-old daughter. The younger children are residing with their grandmother.

The Sentencing Principles: The Starting Point

The community of Hong Kong, and as a result the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instance of disappointment. The trafficking and possession of ‘Ice’ can have serious consequences for the family members close to the accused.

There are also serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private, and more pertinently in public, can be dangerous. The view of the community and the courts is reflected in the nature of the sentences and levels traditionally imposed for drug trafficking.

To reflect the serious view that the courts and the community take in relation to the trafficking of dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs including ‘Ice’, which is of course the subject of the indictment in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for quantities involved in the present case, in relation to ‘Ice’, falls within the range of 10 grammes to 70 grammes which attracts a sentence in the range of 7 to 11 years’ imprisonment ([2014] 3 HKLRD 691, para34). The range in question is upon the basis of conviction after trial. That is the basis on which the starting point is calculated.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is entitled to a discount from the appropriate starting point of 33 per cent. However, in this case the accused was committed for trial and it was only at a chambers management hearing that she indicated her plea of guilty. The Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 considered that a lesser discount was appropriate where the accused indicated her plea of guilty at a later stage, a discount of somewhere in the vicinity of 25 per cent was indicated for a plea of guilty later in the proceedings.

Enhancement for International or Cross-Border Element

The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across international borders into Hong Kong. The policy which underlies this is deterrence. In HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chung Ping Kun [2014] 6 HKC 106, the court suggested an appropriate enhancement where the drugs involved between 500 and 1,000 grammes would be between 1 year and 2 years. Plainly, a lesser enhancement would be called for a lesser quantity. The fact that the drugs were brought across a border within the People’s Republic of China does not, in my view, affect the calculation.

Application of Sentencing Principles

In my judgment, the applicable starting point for this quantity of methamphetamine hydrochloride is 9 years and 6 months. I think a small enhancement for the cross-border component of this transaction is called for. I think an enhancement of the starting point by 2 months is appropriate even though that may be criticised as over-generous. That makes the starting point 9 years and 8 months.

The remaining question is the appropriate discount. As I have already indicated, the plea of guilty was proffered at a case management hearing and no date for trial appears to have been set. Part of the rationale articulated in HKSAR v Ngo Van Nam (above) is that the time of the courts of Hong Kong should not be wasted with cases wrongly being treated as contested cases with all the resources that is implied in that. In my judgment, in the grand scheme of things, the plea was indicated fairly early on in the process of a contested case proceeding in this court. Accordingly, I propose to accord a discount of 27 per cent.

The accused was convicted on her own plea of carrying drugs from the mainland to Hong Kong. She carried those drugs for a reward. I am prepared to proceed on the basis that she was nothing more than a courier. Clearly if the hints of harm to herself or her family were in any way genuine, they certainly did not overwhelm her preparedness to carry a seriously harmful and seriously addictive drug to Hong Kong for money. In my judgment, on a starting point of 9 years and 8 months, applying a discount of 27 per cent results in a sentence of 7 years’ imprisonment. That is the order of the court.