HKSAR v. Chen Xuetao

HCCC 334/2019

[2020] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 334 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, Chen Xuetao, 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. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

On 21 February 2019, at the Arrival Hall of Hong Kong International Airport, the defendant was intercepted for customs clearance. Upon a body search, three slabs of suspected dangerous drug were found wrapped by adhesive tapes concealed between two girdles worn by the defendant. Another slab of suspected dangerous drug was found wrapped by adhesive tape under a pair of tight leggings worn by the defendant.

The defendant was arrested and cautioned in Putonghua. The defendant said under caution that he did not know what the four slabs were. He was given them by a friend in Malaysia and someone would contact him for collection. He was promised HK$10,000 as a reward and he had not received the money.

At the time of arrest, the defendant had two mobile phones and some Hong Kong and Malaysian money on his person. The defendant agreed to take part in a controlled-delivery operation. The defendant made contact with a person named Yu Fa whom he was supposed to contact for collection. The defendant also had contact with someone called ZSBY via WeChat. This person, ZSBY, requested the defendant to deliver the dangerous drug to a certain hotel. Upon instructions from the Customs Officers, the defendant refused and insisted ZSBY to come collect the dangerous drug at the defendant’s hotel. ZSBY probably sensed the irregularity, then instructed the defendant to go back to the Mainland directly. The operation was then called off.

At a subsequent video-recorded interview, the defendant claimed he was a factory worker earning RMB4,500 per month. He came to be acquainted with ZSBY via WeChat. ZSBY asked him to go to Kuala Lumpur to bring something to Hong Kong. He was promised HK$10,000. He went to Kuala Lumpur and was given something by an unknown person. He wrapped the things with adhesive tapes and put them upon his person as instructed. He said he did not know what the things were.

The four slabs of suspected dangerous drug were later examined and confirmed to be a total of 1,404 grammes of a mixture containing 1,169 grammes of heroin hydrochloride with an estimated street value at HK$1,250,000.

The defendant admitted at the time he was unlawfully trafficking in the dangerous drug.

Background and Mitigation

The defendant is a holder of a PRC passport. He was born in Hubei in February 1987, so he is 32 now and will be 33 in February 2020. Defendant does not have any criminal record in Hong Kong. The defendant claimed to have his parents and a younger brother living in the Mainland. He studied up to primary level and worked in a factory, earning RMB4,500 per month.

In mitigation, his counsel, Mr David Chu, submitted that defendant was lured to commit this serious crime for quick money. The defendant is a first offender and he urged this Court to be as lenient as possible.

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 set down guidelines for sentencing a trafficker trafficking heroin hydrochloride. For an amount over 600 grammes, they fall into the very large quantity category. There could be an upward increase or adjustment from 20 years. In a later case, HKSAR v Abdallah, the Court of Appeal gave further guidelines for the trafficking of heroin over 600 grammes.

The quantity involved in this case amounts to 1,169 grammes which falls into the 600-to-1,200-gramme category with a starting point of 20 to 23 years. I am of the view that in all the circumstances of this case, a starting point of 22 years and 9 months’ imprisonment appropriate.

In the case of Abdallah, the Court of Appeal held that if there is an international element in the trafficking, there should be an enhancement of at least 2 years for drugs above 1,000 grammes. I therefore enhance the starting point of 22 years 9 months by 2 years, making an enhanced starting point of 24 years and 9 months. That equals to 297 months.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. With this discount of one-third, the sentence will be one of 16 years and 6 months.

The defendant took part in a controlled delivery which was unsuccessful. I am of the view that a discount of around 38 per cent, which is inclusive of the 33.33 per cent for plea, is appropriate. With this further discount, the sentence is one of 15 years 4 months. So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 15 years 4 months’ imprisonment.