HKSAR v. Thalapathi Subramaniam

HCCC 14/2020

[2020] HKCFI 2646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 14 OF 2020

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

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COURT: The defendant 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 Admitted Facts

The Admitted Facts disclose that the defendant was intercepted at the green channel of the arrival hall at the Hong Kong International Airport for customs clearance on 9 December 2018. The defendant was together with a female passenger and the defendant was carrying a suitcase, and upon inspection of the suitcase carried by the defendant, Customs officer found four plastic packets containing what was later confirmed to be 199.8 grammes of a solid containing 154.7 grammes of cocaine concealed inside two bottles of purported perfume. The defendant also had with him 3.1 Brazilian currencies.

Upon arrest and under caution in English, the defendant claimed he did not know what the powder was and that he had purchased the perfume for his personal use.

During a preliminary inquiry in English and under caution, the defendant claimed he bought the two bottles of perfume from a roadside shop for his personal use and the female who was with him did not have any knowledge about the items. He did not know anyone in Hong Kong and he intended to bring the items back to Malaysia.

Inspection of the defendant’s mobile phone revealed WhatsApp messages between the defendant and two other persons relating to the trafficking of cocaine into Hong Kong.

The street value of the cocaine in question was around HK$200,000.

Despite the defendant’s initial denial, he admitted in court that at the time of the offence he was unlawfully trafficking the drug cocaine.

Background and mitigation

The defendant is a holder of a Malaysian passport. He was born in November 1994, so he is now 25 years of age. The defendant has no criminal record in Hong Kong. According to the antecedent statement, the defendant claimed to be single. He worked as an operator in a paper production company in Malaysia for about seven months before his arrest. Since then, he took up casual employment. The defendant also claimed he was not a drug abuser.

Mr Neil Mitchell in mitigation gave more details about the defendant’s background. The defendant became an orphan when he was a child and was looked after by his grandmother. He studied up to Form 5 and started working at the age of 17. He had worked in Johor, Perak and later in Singapore. After working in Singapore for two years, he could not find another job there and had to return to Johor. He was in debt and was staying with a friend. It was then that he was recruited to act as a drug mule. It so happened that on the day the defendant embarked on this fateful journey, he also received confirmation of a job in Singapore. Unfortunately, the defendant chose the wrong course and ended up in Hong Kong in gaol.

Mr Mitchell submitted that the defendant was of previous positive good character. He had no criminal conviction in Malaysia or in Hong Kong. He was not a drug user and this is the first time the defendant had anything to do with drug. Mr Mitchell further submitted that the defendant was a young and naïve person who was used as a drug mule by traffickers.

The defendant is very remorseful and he wishes to extend his apologies to the Hong Kong authorities for committing this crime. He has learnt a hard lesson and he did not want others to follow him or follow what he had done.

The defendant’s grandmother, who had become the defendant’s de facto parents since his own parents passed away, was devastated by the defendant’s imprisonment. The defendant’s friends are also saddened. The defendant, not being able to speak English well in Hong Kong, suffers from emotional hardship while on remand.

The defendant took part and assisted Father John Wotherspoon in the latter’s anti-drug campaign by writing a letter being posted on the website to warn other people not to follow suit, not to traffic drugs to Hong Kong. Father John Wotherspoon had written to this Court, confirming the defendant’s participation.

I was also given a letter by Reverend Dr Peter Wong of the Christian Living World Life Fellowship Limited. Dr Wong informed this Court that the defendant became a born-again Christian in January 2019, and upon multiple visits by Dr Wong and his wife, the defendant was observed to have made positive changes. Dr Wong asked for leniency on the defendant’s behalf, saying that he and his wife will lend support to him and will help the defendant to find a job back in Malaysia after his release.

Consideration and my reason for sentence

The offence of trafficking in a dangerous drug is a serious offence. A person convicted upon indictment of this offence is liable to life imprisonment and to a fine of $5 million. In the case Attorney General v Pedro Nel Rojas, it was held that the sentencing guidelines laid down in the case of Lau Tak Ming should apply for the trafficking of cocaine. The cocaine involved here is 154.7 grammes which falls under the category of 50 to 200 gramme with a starting point between 8 to 12 years. So on a mathematical calculation, the quantity of 154.7 grammes would attract a starting point of around 10 years and 9 months.

This case involved an international element which is an aggravating factor. That is according to the case of HKSAR v Abdallah. As the amount is less than 1 kilogramme, then with reference to the case of HKSAR v Chung Ping Kun, the enhancement should be 6 months. So with the enhancement of 6 months, the starting point is 11 years and 3 months.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. There also exist special circumstances on the papers which justified a lenient view to be taken of the fact, and I will give the defendant a further discount of 40 per cent. That is inclusive of the one-third discount for plea.

So with the enhanced starting point of 11 years 3 months which equals to 135 months, a 40 per cent discount will yield 81 months, which is the same as 6 years and 9 months.

(Discussion re calculation)

The defendant took part in Father John Wotherspoon’s campaign and I will give him a further discount of 3 months to reflect this participation. Reference is to the case of HKSAR v Kilima Abubakar Abbas.

So with all these discounts in my calculation, for the offence of trafficking in a dangerous drug, the defendant is sentenced to 6 years and 6 months’ imprisonment.