HKSAR v. Wang Guangrui

HCCC 108/2020

[2020] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 108 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The accused was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. It is alleged that he, on the 12th day of May 2019, at Customs Arrival Hall A of the Hong Kong International Airport, unlawfully trafficked in 1.23 kilogramme of ketamine narcotic. He pleaded guilty before a magistrate on 25 May this year and was committed to the Court of First Instance of the High Court for sentence.

The accused was intercepted for customs clearance at the Hong Kong International Airport at around 9 pm on 12 May 2019. Upon a body search, five packets containing what was later confirmed to be 1.49 kilogramme of a powder containing 1.23 kilogramme of ketamine were found inside two girdles wrapped around his waist by adhesive tapes. Inquiries revealed that the accused departed Hong Kong for Kuala Lumpur on 9 May 2019 and flew from Kuala Lumpur to Hong Kong on 12 May 2019.

Upon arrest and under caution, the accused said that the substances were given to him by a foreigner. Someone helped him to wrap these substances around his waist and he would receive a reward of RMB10,000 for carrying the substances to Hong Kong. The accused said he was acquainted with a friend “Forever And Ever”, X, via WeChat half a month ago. He came to Hong Kong on his own and was supposed to call X via WeChat for the delivery of the drugs.

The WeChat conversation between the accused and X obtained by a preliminary screening of the accused’s mobile phone revealed that the accused was nervous about the security check and he sought advice from X as to how to pass the security check. The accused also constantly reported his whereabouts to X.

After his arrest, the accused was willing to participate in a controlled delivery operation. However the operation was unsuccessful and the accused refused to answer all other questions in the subsequent video-recorded interview.

The estimated street value of the dangerous drugs seized was around HK$837,380.

The accused now admits and accepts that at the time he was knowingly in possession of all the dangerous drugs seized for the purpose of unlawful trafficking.

The accused was born in Shandong of mainland China on 4 September 1997. He is now 22 years of age with a clear criminal record in Hong Kong. The accused claimed to have studied up to primary school level. He worked as a metal work factory worker earning RMB3,000 per month. The accused is single and lives in Shenzhen on his own. Both his parents live in Shandong. His father, aged 47, works as a butcher and his mother, aged 46, is suffering from mental illness since the accused’s childhood.

In mitigation, defence counsel, Mr Anthony Yuen, informed the court that the accused was 21 years of age at the time of the offence, and he was a young man with limited experience. Counsel submitted that the accused was lured by X to deliver the drug from Kuala Lumpur to Hong Kong as he was in need of quick money for the medical fee of his parents who were both hospitalized due to deterioration of his mother’s mental condition and her wounding of the accused’s father with a knife. Prior to the trip, X had remitted some money for the accused to process his passport, air ticket and hotel accommodation as well as expenses in Kuala Lumpur. On his way back to Hong Kong, someone wrapped the drug around his body. He had not yet received the reward of RMB10,000 which was payable when the drug was picked up in Hong Kong.

In support of his mitigation, counsel submitted a medical certificate and two mitigating letters showing that the accused’s mother was hospitalized for paranoid schizophrenia since 20 April 2019. The letter from a fellow resident of the accused’s native village gave the background of the accused’s family and the support the accused provided to his family. The second letter from the accused’s former employer, Xinghuo Stamping Parts Factory, indicated that the factory would be willing to employ the accused after he has served his sentence.

The counsel urged this court to impose a lenient sentence, taking into account the accused’s plea of guilty and his participation in a controlled delivery though it was unsuccessful. Counsel submitted that the accused’s genuine attempt to assist the customs in the apprehension of other involved party deserves an extra deduction of sentence, albeit a small one.

According to the chronology prepared by Ms Cherry Chong, public prosecutor, during the controlled operation the accused was able to make a WeChat call to X. X instructed him to board a taxi before calling him further. Thereafter the accused missed three WeChat calls from X due to signal problems. When the accused tried to call X again almost an hour later, the calls remained unanswered. The accused then requested to terminate the operation. The duration of the whole operation took about two hours.

Counsel for the accused agreed to the correctness of the chronology with no further supplement. He also accepted that the assistance given was limited.

Trafficking in dangerous drug is a serious offence. The quantity of drugs involved in the present case amounts to 1.23 kilogramme of ketamine narcotic. According to the guidelines set down by the Court of Appeal in the cases of Hii Siew Cheng [2009] 1 HKLRD 1 and Sin Chung Kin [2013] 1 HKLRD 627, trafficking in ketamine where the narcotic content ranged between 1 kilogramme and 2 kilogrammes, a sentence between 14 and 18 years’ imprisonment should be imposed after trial.

I am of the view that in all the circumstances of this case, a starting point of 15 years’ imprisonment is appropriate.

In the case of Chan Ka Yiu [2018] HKCA 410, the Court of Appeal also held that if there is an international element in the trafficking, there should be an enhancement of 1 to 2 years for drugs between 1 kilogramme to 3 kilogrammes. I therefore enhance the starting point of 15 years by 1 year, making an enhanced starting point of 16 years which is 192 months.

The accused pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.

The accused took part in a controlled delivery which turned out to be unsuccessful. Bearing in mind that it is important to encourage arrested person to render such assistance, a further discount is warranted. This is stated in the case of Lo Sze Tung Stephanie [2019] 1 HKC 309. As to the percentage to be awarded, I bear in mind what was said in Lo Sze Tung. While a range of 33.3 per cent to 40 per cent allows a court to award a discount to a defendant who had made a genuine but unsuccessful attempt, a 40 per cent discount should be seen as a high water mark and there would need to be something quite exceptional about the assistance to justify awarding a discount as much as 40 per cent.

In determining the discount to be accorded to an offender for his participation in a controlled operation, the sentencing court should have regard to the unique circumstances of the case and the relevant factors set out in the case of Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692. It is a matter within the sentencing judge’s discretion as to how these and other possible factors affect the discount to be given in a particular case.

In the present case, I take into account the fact that the accused’s assistance was confined to participation in an abortive controlled delivery which did not involve him in any significant element of risk. After the operation was aborted, the accused declined to furnish further information as he refused to answer any questions in the subsequent video-recorded interview. The assistance he had offered cannot be said to have any particular great value.

Notwithstanding that his assistance was both limited and unfruitful, I am minded to accord him a further discount of 2 per cent to encourage other offenders to co-operate with law enforcement agencies, making a total discount of 35.33 per cent from the enhanced starting point of 16 years. The ultimate sentence of 124.16 months is rounded down to 124 months, that is, 10 years and 4 months’ imprisonment.

The accused, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 10 years and 4 months’ imprisonment.