HKSAR v. Wong Betty and Another

HCCC 309/2017

[2020] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2017

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

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COURT: Both the defendants were committed to this court for sentencing. The 1st accused had pleaded guilty to the 1st count of conspiracy to traffic in a dangerous drug and had also pleaded guilty to the 2nd count of trafficking in a dangerous drug. Both charges are related to the same amount of drugs, namely, 348 grammes of a mixture containing 234 grammes of heroin hydrochloride. The 2nd accused pleaded guilty to trafficking in a dangerous drug, which is that on the 1st day of December, in Jordan, he had unlawfully trafficked in the same amount of drugs which the 1st accused had pleaded guilty to. The 1st accused was also found in possession of a dangerous drug on 1 December, namely, 0.99 grammes of a crystalline solid containing 0.98 grammes of methamphetamine hydrochloride.

The facts of the case was that on 30 November 2016, at the Lowu Control Point, the 1st accused had volunteered to the officers that she had on her person the drugs which she had brought across the border for someone for which she was rewarded $1,800. The drugs were strapped around her waist. She admitted under caution that she would bring the drugs across the border, and then she would be contacted by either Ah Man or her boyfriend, Ah Kuen, if she had not been arrested. She also gave the officers Ah Man and Ah Kuen’s phone numbers.

The drug which was found has an estimated retail value at that time of $244,644.

At 10.17 pm, Ah Kuen called the 1st defendant, asking where she was. Her reply was that she was going across the border. And Ah Kuen called the 1st defendant again at 10.34 and 10.41, asking where she was. At 11.10 pm, Ah Kuen called again, asking if she had crossed the border. After she had been arrested, the 1st defendant agreed to participate in a controlled delivery and she revealed that Ah Kuen is her boyfriend and that the person called Ah Man is the boss. She said the drug was to be delivered to Jordan. So a taxi was arranged by customs officers to take the 1st defendant to the delivery location. In the taxi, the 1st defendant was called many times. Some of the calls were from Ah Kuen who changed the delivery location several times. Finally, it was agreed that they would meet at the ground floor of No. 240 Nathan Road.

At 1.40 am, whilst inside the taxi, the 1st defendant then told the officers that the male approaching the vehicle is her boyfriend, Ah Kuen. The 2nd defendant then stood at the window of the taxi and took over the plastic bag containing the heroin from the 1st defendant and walked away. At that point, the 2nd defendant was arrested but he was told to freeze but the 2nd defendant threw down the bag of heroin and attempted to run away. He was shortly intercepted. He then denied knowledge and ownership of the dangerous drug.

Subsequently, the ‘Ice’, which is the subject matter of the 4th count, was found in the 1st defendant’s home in Shatin and she said that was for her own consumption. Now, SIM cards were taken from the 2nd defendant. Two SIM cards were found to have phone calls with the 1st defendant during the controlled delivery and one of the cards was registered under the name of the 2nd defendant.

And under caution in a subsequent video-recorded interview, the 1st defendant gave an account of how she was told eventually to get the drugs from mainland China and deliver it to Hong Kong, and she gave an account of how she had gone to the mainland on other occasions and that she was paid her reward in cash normally by the 2nd defendant.

So movement records which the customs officers obtained from the Immigration Department showed that she had on various occasions gone to the mainland and back again between 1 June 2016 and 27 November 2016. And the 2nd defendant had no movement record between those dates.

Now, these facts were admitted. However, sentencing was adjourned because another person surnamed Tsui was arrested in connection with this, and both defendants subsequently gave evidence against him which resulted in a conviction for that person Tsui and he was sentenced to over 13 years in prison.

Now, without a doubt, the court has always looked with sympathy in relation to defendants who give evidence against others in a criminal enterprise because they do so at the risk of their own safety and also perhaps the threats of safety to their families and close friends. So the court does appreciate and take this into account. Also, in determining a sentence to give credit to assistance to the authorities by a defendant, it has to be one which would encourage others to do the same.

Now, as far as sentencing is concerned, of course as both defence counsel know, the Court of Appeal has laid down guideline tariff for trafficking in drugs, particularly both in methamphetamine hydrochloride and heroin. And in the case of Lau Tak Ming, for trafficking in heroin of between 200 to 400 grammes, the sentence would be in the region of 12 to 15 years after trial. So according to the guidelines, the starting point in this case for the amount of drugs which was actually found in the 2nd charge and the 3rd charge would give a starting point of 12½ years. And then adding the international element in the case of the 1st defendant, she brought it over from mainland China, so I would enhance it to 13 years.

Now, in relation to the 2nd defendant, Miss Tsang had attempted to dispute what was contained in the Admitted Facts that her client knew that the 1st accused had brought the drugs over from China as he only received it in Jordan. However, I had pointed out to Miss Tsang that these facts were admitted by her client, there was no notice to the court at that time that he disputes the Admitted Facts.

Furthermore, the Admitted Facts show that SIM cards which were taken, which I have already mentioned above at paragraph 11 of the Admitted Facts, which were seized from the five phones seized from the 2nd defendant, two of the SIM cards were found to have phone calls with the 1st defendant during the controlled delivery. And so that supports what the 1st defendant and the Admitted Facts say that during the time when she was in the taxi, she had received calls from her boyfriend, Ah Kuen.

So I can only go on the Admitted Facts and not on what counsel says to me from the Bar table, giving evidence that whatever her client is alleged to have disputed. So I do not accept, as I have told Miss Tsang, what she says because it was clearly admitted by her client, the facts are there all in the Admitted Facts. So I would also include the international element, and the starting point for her client’s charge will also be 13 years.

Now, I have to deal now with the discount. Of course, as I have said, clearly the assistance offered by both the 1st and the 2nd defendants are great and which resulted in a successful conviction of another offender. And Mr Chiu has submitted that his client has only two previous convictions and one was for possession of dangerous drug and that it was his client who participated in the controlled delivery. And according to the case of HKSAR v Nkwo Darlington [2016] 1 HKLRD 692, the Court of Appeal had said that for a successful controlled delivery, he is entitled to somewhat like a 5 per cent discount.

And I do take that into account and I also do take into account the fact that the 1st defendant had given evidence and all the problems that entails to both his personal life and his friends and family. So I am therefore of the view that he should be given a 55 per cent discount.

Now, in relation to the 2nd defendant, again the starting point will be 13 years’ imprisonment. In his case, he faces only one charge and that is the trafficking in Charge 3. However, he has a very poor criminal record. He has some 27 previous criminal convictions, of which three are drug-related and they were all for possession of dangerous drug. So this would be the first time he is convicted of a trafficking in dangerous drug.

So again, because he gave evidence and that he has, as Miss Tsang submitted, he has thought about his life, he has now decided whilst in prison to better himself. He has successfully taken exams to improve his academic knowledge, and that is all to be encouraged. Also of course, he has also put his own personal perhaps safety and that of his friends and family perhaps would cause him concern, having given evidence against the other person, the person called Tsui. I have been told and I do accept that what has been told to me in the Sivan procedure, and so I similarly think that he should be entitled to 55 per cent off.

So now, in relation to the 1st accused, apart from the trafficking in Count 2, there is also the conspiracy in Count 1. And this emerges from her confession to the customs officers about what she had done prior to this time when she was arrested at the border crossing with the drugs. And the conspiracy really emerges from her video-recorded interview and where she states that she was asked by Ah Man through the 2nd defendant to bring drugs from the mainland to Hong Kong and that she had done so on about five occasions and so she would be rewarded on those occasions.

I do accept, of course, that the charge of Charge 1 is totally based really on her confession. And given all that she had done, as I have mentioned, I will similarly give her the same sentence as in Charge 2.

In relation to the 4th charge for possession of dangerous drugs, that is, to me it merits a starting point of 18 months and which would be reduced by one-third to 12 months.

So for the 1st defendant, for Charge 1 and Charge 2, it will carry a sentence of 13 years’ starting point but reduced 55 per cent, which would then bring it down to 5 years and 10 months on each of those counts. But in the circumstances of this case, I will make them concurrent. In relation to Charge 4, as I have said, I consider 18 months’ starting point to be reasonable, reduced to 12 months because of her plea, and I will also make that concurrent. So she goes to gaol for a total of 5 years and 10 months.

There is also the breach of probation. I think she also in 2016, September 2016, for a charge of criminal damage, she was given 7 days suspended for 12 months. So I have to consider whether to activate the sentence. Having considered that it was for a pretty minor offence and compared to what she is facing here in this case, and also taking into account everything that has been said on her behalf, I will not activate that suspended sentence.

Now, the 2nd defendant, he only faces one count and that is the 3rd charge and, as I have said, I will give a similar starting point and also the 55 per cent discount, and so he will go to prison for 5 years and 10 months.