HKSAR v. Ting Ka Chun

HCCC 378/2019

[2020] HKCFI 1765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 378 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The 2nd defendant, Ting Ka-chun, 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. That is the 2nd charge, and D2 was charged at the same time as another defendant, that is D1, Lee Ying‑wai, who also faced with one count of trafficking in a dangerous drug. That was the 1st charge.

Both defendants pleaded guilty to their respective charge before a magistrate and they were both committed to the Court of First Instance of the High Court for sentence.

On 16 April this year, both defendants confirmed their pleas and confirmed the Summary of Facts. I proceeded to sentence D1 but adjourned the sentence of D2 pending further investigation.

Admitted Facts

The Admitted Facts disclosed that both defendants arrived in Hong Kong from Cambodia on 23 November 2018. Two packets of what was later confirmed to be 3.28 kilogramme of a solid containing 2.134 kilogramme of cocaine were found concealed inside the suitcase of D1 while two packets of what was later confirmed to be 2.77 kilogramme of a solid containing 1.926 kilogramme of cocaine were found concealed in D2’s suitcase. Both defendants were arrested and cautioned.

Under caution, D1 said it was Ah Chun, meaning D2, who had asked him to go to Cambodia to bring back the luggage of dangerous drug for a reward of $30,000. D2, under caution, said a friend he knew via WeChat promised him $30,000 to bring the dangerous drug back from Cambodia.

In a video-recorded interview conducted with D2, D2 gave details of how he came to be bringing dangerous drug back to Hong Kong. He said he became acquainted with someone called Ah Wai. They then communicated via WeChat. In September, Ah Wai offered to pay him $30,000 to bring something back to Hong Kong for him. D2 understood the something was dangerous drug. Then in November, Ah Wai asked D2 again and D2 agreed this time. Ah Wai mentioned one more person was needed so D2 asked his friend, D1, to join in. As for remuneration, Ah Wai told D2 that he and D1 would each get $30,000 while D2 would get a few thousand dollars more for helping to recruit. D2 was the one who made arrangement for the flight tickets and accommodation.

Both defendants went to Cambodia on 20 November 2018. Ah Wai told him via WeChat to collect two suitcases at the entrance of the hotel. Both defendants went together and collected two suitcases from a Chinese man. D1 and D2 just randomly carried one of the two suitcases and returned to Hong Kong on 23 November 2018.

The estimated value for all the cocaine found in this case was HK$7,217,650.

Background and mitigation

D2 is a 27-year-old single man who lived with his parents and one brother prior to his arrest. He had one previous conviction of attempted exporting prohibited article not under and in accordance with an export licence and was sentenced to prison for 5 weeks in 2016. D2 was said to be educated up to Secondary 5 level. He claimed to have worked as a construction worker and was also a salesperson at the time of his arrest.

The defendant, his mother, his stepfather, his young brother, his grandparents, his cousin and his friend all wrote to this Court asking for leniency. It was said that the defendant borrowed money to get into some sort of pyramid selling and lost all the money, and he was unemployed and unable to repay the debt which made him finally agree to traffic dangerous drug for Ah Wai. The defendant was described as a kind-hearted but susceptible young man who was used to be a drug mule on this occasion.

Mr Kevin Chan, counsel for the defendant, submitted that the defendant committed the present offence for money, adding that that was not an excuse but just to explain the background. The defendant is truly remorseful and knows that he only had himself to blame. The defendant has a very supportive family and friends who stand by him and he was determined to learn a new skill or trade while in prison so that he can lead a new life upon discharge.

Consideration and reasons for sentence

For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In the case of Abdallah, the Court of Appeal set down guidelines for the trafficking of over 600 grammes of cocaine. There are four categories, starting from 600 grammes to 1,200 and progressing up to over 15,000 grammes. Now, in the case of D2, the cocaine involved was 1.926 kilogramme which falls into the “1.2 kilogramme to 4 kilogramme” category with a starting point between 23 to 26 years.

Having considered the circumstances of this case, in particular the fact that D2 recruited D1 on the promise of a further payment, I am of the view that a starting point of 24 years is appropriate. This case also involved an international element so an enhancement is called for. As the amount is over 1 kilogramme, the enhancement would not be less than 2 years. That is the case of Abdallah. I will enhance the starting point of 24 years by 2 years, making an enhanced starting point of 26 years.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. While I appreciate the remorse expressed by the defendant and the love and concern shown by his family and close friends, there are no other grounds to further reduce his sentence. So for the offence of trafficking in a dangerous drug, the 2nd defendant, Ting Ka-chun, is sentenced to 17 years and 4 months’ imprisonment.