HKSAR v. Tsui Tik Hong

HCCC 200/2020

[2020] HKCFI 3053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 200 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Stephanie Tsui and was committed on 24 August 2020 to the Court of First Instance for sentence.

Summary of facts

2.The defendant is a Hong Kong resident.  He travelled to Brazil and then returned to Hong Kong on 17 February 2019.  He was intercepted by Customs officers when going through the Green Channel of the arrival hall.  Upon inspection of two of his three suitcases, false compartments were found to contain white solids.

3.Government Chemist later confirmed them to be five packets of a total of 7,990 grammes of a solid, containing 6,143 grammes of cocaine.  The retail value of the drugs would be around HK$7.5 million.

4.The defendant was arrested and later on in a cautioned video recorded interview admitted that he was offered by a person called ‘Eric’ to deliver two suitcases from Brazil to Hong Kong for a reward of $5,000.  He knew he was being asked to do something illegal and guessed that the two suitcases would contain dangerous drugs.  He met ‘Eric’ before leaving for Brazil from Hong Kong and was given cash of $12,000 and a phone for communication.  The defendant had since spent all the money in Brazil.  When in Brazil, a stranger handed the defendant the two suitcases and instructed him to wrap them with red plastic sheets.  WhatsApp communications with ‘Eric’ found in the phone confirmed what the defendant said in his interview.

5.The defendant admitted through the summary of facts that he was unlawfully trafficking in the cocaine.

Background and mitigation

6.The defendant is of previously clear record in Hong Kong and is now 26 years old.  In his helpful written skeleton for mitigation, Mr Chu informed the court that there will be no claim for partial consumption of the drugs as mitigation.

7.The defendant is single and had been living with his parents and younger sister.  He quit school after finishing Form 1 due to poor academic performance.  It has been difficult for him to find work given his level of education.  He mainly did odd jobs of hard labour on a casual basis, earning a small wage.  The defendant had been unemployed for six months prior to the commission of the present offence.

8.The defendant’s father used to work as a construction worker.  He had been unable to work properly after suffering a leg injury at work.  Being the sole breadwinner of the family meant that he had difficulty providing for his family.  As a result, the defendant’s father turned to gambling and developed into a pathological gambler, driving the whole family into deep financial trouble with the several hundred thousand dollars of gambling debts incurred.

9.The defendant committed the present offence to try to help his father to repay his debts.

10.The defendant’s mother and younger sister wrote in mitigation.  They told the court how the defendant has always been a loving son and caring elder brother.  The defendant also wrote to express his deep remorse.

Sentence

11.The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment.

12.The guideline tariffs for trafficking in large quantity of cocaine are found in the case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.  The band of tariff for trafficking in 4,000 to 15,000 grammes of cocaine is that of 26 to 30 years’ imprisonment.

13.An arithmetical application of the tariff to the 6,143 grammes of cocaine in question would lead to a starting point of slightly more than 321 months. I will adopt a starting point of 321 months.

Aggravating factor

14.The defendant had flown from Hong Kong to Brazil and back just to bring the two suitcases of drugs into Hong Kong.  The defendant had actively taken part in the importation of the drugs into Hong Kong over international borders.

15.It is now well established that the presence of an international element in trafficking cases is an aggravating factor. 　In the case of HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal laid down the following guidelines for the enhancement of sentence:

“9.  As a broad guideline for drugs of this kind below 1,000 grammes we will suggest the level of enhancement as follows:

1)  Up to 250 grammes 6 months

2)  Between 250 and 500 grammes 6 months to 1 year

3)  Between 500 and 1,000 grammes 1 year to 2 years”

16.Applying the principle of totality and taking a step back, given the age of the defendant, his clear record and the circumstances of his commission of the offence, I find that an appropriate enhancement in the present case is that of two years’ imprisonment, even though the quantity of cocaine involved is more than six times the maximum envisaged in that case.  An even higher sentence as a result of a more serious enhancement will likely have a crushing effect on the defendant.  The enhanced sentence is, therefore, 345 months.

17.I do sympathize with the defendant’s family for losing their son to prison for such a lengthy period of time.  It is, however, trite law that in cases involving very serious offences such as trafficking in dangerous drugs, and in quantities as large as the present case, personal circumstances would be given very little weight, if at all, as a mitigating factor.

18.Furthermore, the defendant must no doubt have known when he decided to take up the offer to deliver the drugs to Hong Kong that if he was caught for trafficking, either in Brazil or in Hong Kong, he will be facing a long prison term.  Yet, he decided to take that risk and as a result, he has no one but himself to blame for being separated from his family.

19.The defendant is granted the full one-third discount for his timely plea of guilty and is sentenced to 230 months, or 19 years and 2 months’ imprisonment.

Mr Raymond Chan, PP (Ag), of the Department of Justice, for the Respondent

Mr David Chu, instructed by Wong & Co, assigned by Director of Legal Aid, for the Defendant