HKSAR v. Wu Chi Ki

HCCC 151/2019

[2020] HKCFI 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 151 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, Wu Chi-ki, is being sentenced today after a trial which lasted 25 days during a difficult time in our history as the jurisdiction was facing the COVID-19 pandemic. The trial commenced before the outbreak of this virus took hold in Hong Kong and it continued with the support of the prosecution and defence as well as a dedicated jury. It continued because the defendant came to trial over six years after the events in question, in part, because he absconded when he was eventually arrested on 3 July 2017.

These proceedings relate to an incident in 2013 and relied primarily upon the evidence of two prosecution witnesses, PW1, Cheng San-faat, and PW4, Tjeng Julianto, who were caught in possession of 826 grammes and 732 grammes of methamphetamine hydrochloride respectively, at the Hong Kong International Airport on 23 October 2013. As a result of their unanimous verdict, the jury were sure that the defendant had recruited these two young men to carry ‘Ice’ to New Zealand.

He had met them around the middle of 2013. They were 22 and 20 years old at the time and had not been in the workplace all that long. Both of them worked for H&M as salesmen and were of previous good character. Like all young men, they enjoyed going out for drinks. In particular, they enjoyed going to Lan Kwai Fong. The defendant was 25 years old and more mature. He had previously run his own business with a partner when he was just 18 and at the time of these events, he was self-employed as a tattoo and body piercing artist living with his girlfriend. He clearly had some money as he was able to arrange entry for PW1 and PW4 to the VIP members‑only club known as PLAY. He did so on a regular basis and he did so, even though both he and the witnesses said that their friendship was a casual one.

As with all friendships nowadays, close or otherwise, the defendant and the witnesses had contact on social media. They had WhatsApp and telephone contact and would occasionally contact each other to meet up. This was often in the early hours of the morning. A study of the telephone records shows that the two numbers attributed to the defendant were used more often to contact these witnesses than the other way around.

He, and all of their friends, knew that they were excited about taking a working holiday abroad. They were in the process of applying for visas to go to Australia. But at some point in October of 2013, the defendant suggested that they should go to New Zealand instead. They were not keen on the idea as a holiday to New Zealand would be expensive.

A number of further discussions took place over the next few days during which the defendant slowly but surely sought to persuade them that they should go to New Zealand. During that period, at various times, he offered to pay for the trip if they would take something for him. Then he offered to pay for their expenses and to offer a reward. The exact stage at which the witnesses realized that what they were to carry were drugs and the exact stage the defendant told them that it was dangerous drugs is unclear. It is likely to have been between 9 and 13 October 2013.

The witnesses were not completely naive. They knew of someone else who had done a similar thing and returned safely. They knew that it was illegal but they were greedy not only for the opportunity of a trip but also for the reward money. They told the jury they balanced the reward against the risk but the defendant had told them that it was safe and that, if caught, they would receive only 2 to 3 years in prison. They admitted their greed and foolishness in believing the defendant and that it had outweighed their reticence and they eventually agreed.

From this point on, the defendant was in total control. There was no evidence that he was working for others although there was a suggestion that he was working with others. It was the defendant who arranged to meet the witnesses at Wing On Travel just two days after he had initially persuaded them to carry drugs for him. He had identified the tour group that they were to join to avoid bringing attention to themselves. He gave the witnesses the money for the trip. He waited for them to book it and immediately afterwards he took all of the documentation off of them, including their passports. He directed them to a guest house a week later where they were to receive the drugs. He introduced them to another member of his group who sought to allay the young men’s growing nervousness by telling them what they had already heard, that is, this had been done before and that it was safe.

The defendant met up with his couriers in the guest house he had arranged through them. He brought with him his partner in crime and also a woman, who, presumably, had made the clothing which concealed the drugs. All three ensured that the couriers could wear the clothing without drawing attention to themselves. At that point, the defendant gave them more money, this time New Zealand dollars, for expenses once in New Zealand. He had also obtained unregistered SIM cards with which to communicate with them and had given them instructions on what to do when they arrived in New Zealand.

They carried between them over $1 million worth of dangerous drugs. We do not know the value of those drugs in New Zealand. But they and their cargo were a valuable commodity and so the defendant escorted them from the guest house to the bus which was to take them to the airport, and he instructed them to replace their own SIM cards with the unregistered ones. Once they had boarded the bus, he kept in constant contact, not only during the journey but also upon arrival at the airport as he had previously instructed them how not to draw attention to themselves and he had wanted to ensure that they got through emigration safely. They failed to do so as they were stopped before they managed to join their tour group.

These were two very frightened young men but they had been briefed by him about what to do on arrest. The defendant had told them to be vague, to mention some things but not others. He told them they would be provided with a lawyer and he had given them fairly detailed instructions about how to put the police off the scent of himself and others. As a result, whilst both witnesses immediately admitted their own part to the police upon arrest, they did not indicate who else was involved. Nor did they do so in interview save to refer to a person called Kyle.

The next morning, however, the police managed to find out that Kyle was the defendant. The process of providing assistance and instituting proceedings against a presumptive co-defendant is a slow one. In this case it was hampered by the delay in the prosecution against PW1 and PW4 and so, nothing substantive happened to the defendant until July 2017.

By chance he had been stopped whilst out with his girlfriend and the police officer processing him discovered that he was wanted for enquiries. Both he and his girlfriend were taken to Wanchai Police Station. The officer who interviewed him knew little of the matter and the defendant managed to avoid answering anything of any consequence, as is his right. He did admit to knowing both PW1 and PW4 but he denied having anything to do with the drug trafficking for which they had been arrested. He was allegedly unable to remember any of the events, dates or telephone calls in question given the passage of time. The delay worked to his benefit at that time because, as a result, the evidence against him might have been considered equivocal by the magistrate who dealt with him and he was given bail.

An identity parade two weeks later, however, improved the case against him and, fearing the revocation of his bail, he failed to appear on the next occasion. The fact of his failure to answer bail would have been an aggravating feature of this case, as is the fact that he had clearly induced his girlfriend to lie, not once but three times, on his behalf including before this court. She and his parents helped to shield him from the police for a further 18 months before he was once more stopped by chance in the street, at which point he admitted in court that he lied twice to that police officer in the hope of not being discovered. But he was. He was arrested and has been on remand since that date.

Mr Wu, as is your right, you put the prosecution to proof. You made the witnesses come and testify against you and you put forward an alibi witness, your ex-girlfriend, who lied on oath. Whilst Mr Khosa did what he could on your behalf on your instructions, you chose to give evidence and you chose to put forward a defence, including one of your own positive good character. You suggested to the jury that you were a loving and caring son and that you were a true and caring friend to PW1 and PW4. Mr Chan, on behalf of the prosecution, made short shrift of that.

Before this court, you suggested to the jury that you absconded because of your father’s illness. He had been diagnosed, unfortunately, with prostate cancer just two months prior to your arrest but you told the jury that you had been told that his diagnosis was terminal and that nothing could be done. You told the jury that your mother was working and could not be with him and that you wanted to take care of him as you did not know how long he would live.

Thankfully, he is alive today. I am sure you are glad of that but that is because he had not received a diagnosis that his cancer was terminal and that there was no treatment. Prostate cancer is often treatable when caught early and many patients outlive their disease. He did receive treatment.

We also, I note, have no independent evidence that you were ever actually with him when he did receive treatment, just your word that you took him for appointments whilst on the run from the police. But I also note you never gave up your independence to care for him, even before your arrest and after the diagnosis. Nor when you were on bail. You continued to live with your girlfriend.

The use of your father’s illness to explain your absconding is indicative of your character. You use people and you do not seem to care how you do so. No doubt your parents do not complain about that because they love you as their son but I imagine you have not taken into account the parents of PW1 and PW4 who have seen their sons receive a substantial term of imprisonment because of your actions. It was in respect of PW1 and PW4, that you suggested through PW3, that you were distraught over their prosecution and sentencing and that you did not want them to continue their criminal activities out of prison even though you had been the cause and the sole cause of their criminal activities. You suggested that you offer to provide an apprenticeship for PW4 as a result of your kind nature, not your guilt at having placed him in this position in the first place.

I have no doubt, given that you were prepared to pay them HK$50,000 each and that you paid for air-tickets and the tour group, which must have added another HK$100,000 at least to the expense, that you and others were going to make a considerable amount of money out of this trafficking, with no thought for the young men you recruited and those who were purchasing your drugs in New Zealand. I suspect, although you denied it in evidence, that you did have a degree of guilt for what had happened to your couriers and that you did intend to help at least one of them when he was released although a cynic might have seen your letter in 2016, before your arrest, also as a means to keep them sweet so that they did not give evidence against you.

It is a mark of the character of the two witnesses when they told the jury how affected they were by seeing, for the first time, drug addicts whilst in custody. They had previously no idea of the harm they could do and the lives they may have destroyed. It is also a mark of their character that they readily admitted their greed and their remorse for the harm they had done to their family and never suggested that they should not be punished for what they had done. They were persuaded to do the right thing and give evidence against you by their families who believed that they should tell the whole truth and not just the truth which had been previously engineered by you. It took bravery to do that. You took the risk of being able to undermine them in trial but it did not work and so you can obtain no discount for plea or for assistance.

You are responsible for the whole amount which these two couriers had on them that day. The relevant sentencing guideline in this case is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. For trafficking in between 1,200 and 4,000 grammes of ‘Ice’, the starting point after trial is between 23 and 26 years. I take the view that for trafficking in 1,558.36 grammes, the starting point is 23 years and 6 months.

There are also a number of aggravating features. Firstly, there is also the international element of this crime as you were arranging to traffic drugs into New Zealand. This was a considerable quantity of drugs and therefore the enhancement, in accordance with the guidelines in Abdallah, should be 2 years. In the circumstances of this offending and even though the sentence you will inevitably receive will be lengthy, I cannot justify reducing this guideline sentence.

There is a further aggravating feature in that you recruited PW1 and PW4 but also you organised the trip; obtained the drugs; arranged how to secrete them and controlled all of the movements of PW1 and PW4. There is no reason for the court not to find that you were to directly personally profit from this crime rather than somebody further up the line. You were not simply the recruiter or the quartermaster. You were much more than that and those who profit in this way must know that they will be suitably punished for what they have done.

It cannot be the case that you and the people you groom and recruit are equally culpable. You are more blameworthy than them. For your role in this matter, I intend to enhance your sentence by 2 years and 6 months. In doing so, I have taken into account the fact that you have chosen to have a trial and put the prosecution to proof as is your right, but also you chose to put forward a positive defence case including alibi evidence.

I have taken into account the current nature of international drug trafficking, the expense in commercial terms and the costs to human lives of this evil trade which more and more criminal entrepreneurs think they too can take part in. I have taken into account the whole of the circumstances surrounding this case including its professionalism and the need to deter others who may be tempted to dabble in this crime at the expense of others, apparently at no risk to themselves.

There is also the fact that you persuaded an otherwise law-abiding young woman to lie on your behalf on oath and when being questioned by the police. She also aided you in avoiding the authorities which is an obstruction of justice. However, taking into account the totality of the sentence I am about to pass as mentioned above, I will add no further to your sentence. If proceedings are taken against Miss Tong, that will be on your conscience.

You have one matter on your criminal record which was a long time ago and you too were young and I will not take that into account.

I have heard Mr Khosa in mitigation. As ever, he is most persuasive. I was considering a greater enhancement for your role than you have actually been awarded. Unfortunately, there is nothing else which can be said on your behalf which can mitigate the sentence I am about to pass upon you. I have seen and heard nothing redeeming. You used others for your own gain and you have been caught. You will go to prison for 28 years.