HKSAR v. Sun Victor and Another

HCCC 95/2021

[2022] HKCFI 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 95 OF 2021

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  19 October 2021 and 7 February 2022

Date of Sentence:  7 February 2022

Date of Reasons for Sentence:  7 February 2022

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REASONS FOR SENTENCE

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1.The First and Second Defendants (“D1 & D2”)  pleaded guilty at the first opportunity before Daniel Tang, Magistrate, on 12 April 2021 and were committed to the High Court for sentence.

2.D1 pleaded guilty under Count One to Trafficking in a Dangerous Drug, contrary to s4(1)(a)  & (3)  of the Dangerous Drugs Ordinance, Cap 134 and under Count Two, to Dealing with Property Known or Believed to represent the Proceeds of Drug Trafficking contrary to s25 of the Drug Trafficking (Recovery of Proceeds)  Ordinance, Cap 405.  The amount and type of drug under Count One is 30,622.70g of cocaine.  Under Count Two he has admitted dealing in HK$81,264 as the proceeds of his trafficking in drugs.

3.D2 pleaded guilty under Count Three to Trafficking in a Dangerous Drug contrary to s4(1)(a)  & (3)  of the Dangerous Drugs Ordinance, Cap 134.  The type and quantity of drug under Count Three is 29,739g of Cocaine.

4.The Summary of Facts, which has been agreed, and which forms the basis of plea, relates to events in April 2019.  D1 & D2, both holders of Australian passports, were 28 and 18 years of age respectively at that time.  D1 had entered Hong Kong on 13 April 2019 and D2 had entered a week later on 21 April 2019.  Both defendants were intercepted outside of Tower 8 of Island Harbourview on 29 April 2019.  They were carrying suitcases which contained the drugs attributed to them in the indictment.  Neither defendant made any admissions upon arrest and caution.  The property they had just visited, was searched.  D2 admitted to picking up the luggage there for a reward but said he did not know the contents.  That flat was registered in a third party name.  D1’s hotel room was in the Cityview Hotel.  It was also searched and HK$81,264 was recovered from a locked suitcase along with 19,000 Japanese yen, 508 Singaporean dollars, 86,000 Korean won, 440 Australian dollars and 7,854 Malaysian ringgit.  He remained silent throughout.  A search of D2’s hotel room at the Shai Red Hotel recovered a small amount of Hong Kong and Australian dollars as well as a quantity of vacuum sealer bags but nothing else of value.  Both hotel rooms had been booked for the same period of time.

5.D1 remained silent in interview.  D2 answered questions about his personal background but no more.

Drugs Value

6.The estimated retail value of the drugs recovered from D1 was HK$39,495,609.13.  The estimated retail value of the drugs recovered from D2 was HK$39,488,709.

Mitigation

7.D1 is now 30 years of age and single.  Although born in England, he is the holder of an Australian passport.  Not surprisingly therefore he has a clear record in Hong Kong.  In his written submissions Mr McGuinniety submits that D1 is of good character in Australia.  He is a university graduate.  I am told that he had employment as a fitness instructor in Australia earning AU$1,600 per month.  As Mr McGuinniety has conceded there is very little he can say which can mitigate this offending of more import than the letter from the defendant’s mother, which I have read.  She clearly adores her son and she will serve her own personal sentence whilst he is serving his for he is obviously the centre of her universe.  Unfortunately, in my position I see young men time and again who have not thought through the consequences of their actions and time and again I receive letters from parents who cannot conceive of the evil which their children have chosen to partake in.  I completely understand a mother’s love and devotion to her son but he was not 16 or 17, he was 28 at the time of this offending.  He had deliberately travelled from Australia to Hong Kong in order to traffic in dangerous drugs. No doubt he was to receive a reward for doing that at some stage.  I do not know where these drugs were destined.  I am assuming they were to be illegally imported into Australia as all the players appear to be resident in that country.  The significant amount he was found to be in possession of and his connection to the drugs found in the possession of D2, makes little difference to the ultimate sentence.  These were very large quantities of drugs each possessed with the intention of trafficking in them.  What I do think of, as should he when he is feeling sorry for himself and his mother, is the hundreds if not thousands of people he intended to help abuse drugs and their families and their mothers and fathers and the mothers and fathers of the children who would have become addicted or even overdosed on the drugs found in the suitcase he was carrying.  This is an evil trade and he willingly lent himself to it. He may very well be an otherwise decent human being but when he picked up that suitcase, he was thinking of no one but himself and certainly not the heartache he would cause his mother, or of the potential harm upon others.

8.D2 is now 20 years of age and also the holder of an Australian passport.  He has lived there all his life.  His father and mother emigrated to Australia from Korea.  His father is a pastor and his mother an audiologist.  He too was a man of good character.  Mr Davies, on his behalf has sensibly accepted that there is very little than can be said which can mitigate the sentence which this court must pass upon him.  There is no way this court can ignore the huge quantity of drugs nor the way he was simply recruited by another to travel to Hong Kong to traffick in them.  He is young, yes, and extremely foolish but he knew what he was doing and he did it for a reward.

Assistance

9.I understand that both defendants sought to provide some assistance to the Customs and Excise but that assistance is not likely to result in anything productive here in Hong Kong, although it may be of assistance to investigating authorities in Australia or elsewhere.  It is the policy of the courts to take into account in mitigation of sentence, any useful assistance given by a defendant.  We encourage the sharing of information which help us to combat crime and to protect society.  In Z v HKSAR (2007)  10 HKCFAR 183, the Court of Final Appeal set out a number of factors in determining whether assistance merited a discount.  These would usually include, as they do in other jurisdictions:

i)  the timing, nature and extent of the assistance provided; and

ii)  any likely consequences to the defendant as a result of giving that assistance.

10.Mr McGuinniety on behalf of D1 has submitted that in Hong Kong a discount of between 40 and 45% should be given to a defendant who has provided practical useful assistance.  D1 made a Non Prejudicial Statement (“NPS”)  dated 20 November 2020.  Seven months prior to that given by D2 below and almost a year and a half after arrest.  That was not timely and common sense dictates that the later assistance is given, the less value that it will be.  He referred to a female and provided her full name, Australian telephone number and address.  He suggested that she recruited him and controlled operations.  He said that she was his girlfriend in Australia and that she had invited him to come to Hong Kong with her.  If that was the case, then he must have known her well and cannot suggest that he did not know exactly what he was getting himself into.  When she left Hong Kong ahead of him, he was given instructions by her via an encrypted application on an encrypted phone for which, he says, he had forgotten the passcode.  He was instructed by her to meet up with D2 and to pick up a suitcase from a flat in Tai Kok Tsui and take it to a hotel.  He would then be contacted.  He did not know how much he was to be paid for this despite being in a relationship with her, although he had eventually received HK$200,000 as spending money from her, a not insignificant amount for a short holiday in Hong Kong.  Despite living with his recruiter, that was all of the assistance which he gave.  According to Acting Senior Inspector Ng, this information was potentially of practical use.  As of this date, there is no evidence it has been of any actual use.

11.Mr Davies, on behalf of D2 has submitted that D2 had provided a NPS dated 24 June 2021.  This was just over two years from the date of offence and 7 months after D1.  In that NPS, he gave details of two people directly involved in this drug trafficking.  He refers to the same female as D1 but can only give her first name and states that it was she who recruited him.  He was able to give her approximate age, nationality and the date of her departure from Hong Kong, although this information was the same as that given by D1 previously save that D1 gave a fuller description and identification details.  D2 also stated that it was possible that there were some messages between himself or D1 and that female within a mobile phone recovered from them but he too could not now remember the access code.  He said he was told by her that he would receive AU$100,000 for his part.  This was far more than D1 had said he received for spending money.  As for the second person, who was a white male, he could give very little information save that he was in a relationship with the female.  There was no suggestion by D2 that this white male was D1, who had previously told Customs and Excise that he was in a relationship with the female.  That failure to identify D1 as the boyfriend of the female is a surprise if he was being truthful as there has been no suggestion of another party by either D1 or D2.  Mr Davies submits that information is sufficient for Customs and Excise to identify those involved.  I think that is a little optimistic as to the second person, if indeed there was a third party, but I note that the female may now have been identified. However, that was presumably as a result of the information given by D1.  As she is out of Hong Kong and a resident of Australia, any further action will be a matter for the Australian authorities unless she foolishly returned to this jurisdiction.  Acting Senior Inspector Ng states this information from D2 is also of potentially practical use.  Mr Davies nevertheless suggests that such assistance should enable the court to give a greater than one-third discount for the plea of D2.  He suggests that enhanced discount should be between 40 and 45% in accordance with Z v HKSAR supra.

12.There are a number of authorities which assist the court including Z v HKSAR going through to HKSAR v Lo Sze Tung Stephanie CACC 190/2017.  A defendant who has made a genuine attempt to assist the authorities and that assistance has been helpful but for one reason or another is not assessed to be of particularly great value will be entitled to a greater than one third discount in the order of between 33.3% and 40%.  McWalters JA gave an example of an unsuccessful controlled delivery[1] but also noted that 40% is the high water mark of such situations as was made clear in HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692.  To fall within the 40 to 45% bracket encompasses matters where the nature and extent of the assistance given is as an informant and with no risk to the defendant himself and covers situations where the assistance and offer to give evidence encourages a co-defendant to plead guilty.  That could never be the case here as it is highly improbable that either of the persons referred to by D2 will ever return to the jurisdiction.  Without entering upon a treatise of the various situations referenced elsewhere, the assistance given by D2 whilst a genuine attempt to assist is of limited value and falls within the range of 33.3% to 40%.  It does not reach the high water mark.  No assistance was given as to a controlled delivery because neither defendant made admissions upon arrest as is their right.  But if they had sought to take part in such a delivery, they would certainly be in a better position today.

13.The assistance which both of them sought to give and which is under active consideration elsewhere has no positive role to play here in Hong Kong.  It may yet of course have a role to play in Australia or elsewhere and if it does, it is open to them to seek a further discount beyond that which I intend to give, by way of petition to the Chief Executive.  I do note that the assistance they gave differed.  D1 gave assistance only in respect of his girlfriend but he did give sufficient information to enable the authorities to identify her.  He mentioned no other party.  D2 may very well have provided all he knew, which was far less than D1 in respect of the female and may have been disingenuous in respect of the white male.  Neither party was full and frank upon arrest, which may have led to identifying others and the carrying out of a controlled delivery.  They must never be penalised for exercising their right to silence but equally they may gain no credit for it.  For their exercising of that right prejudiced them in gaining any advantage in sentence as to discount for assistance at an early stage.  D1 gave assistance in respect of someone he said he cared for and he knew was long gone.  D2 gave assistance as to the same person but perhaps was unaware of the relevance of the relationship between D1 and the female but did his best albeit rather late in the day.  The assistance was of limited value in Hong Kong but I will give nominal credit at this stage for that assistance by discounting both sentences by one year.

Sentence

14.At a hearing on 19 October 2021, I asked for assistance from the prosecution upon the sentencing of very large amounts of dangerous drugs.  Mr Gary Leung has helpfully provided to the Court a recent judgment of the Court of Appeal[2] in HKSAR v Chu Ho Wa & Li Chin Pang CACC 331/2017; [2021] HKCA 1896, the reasons for judgment for which was handed down on 10 December 2021 after the last hearing.  That case involved the trafficking of some 34kg of ICE for which the defendants received a term of imprisonment of 33 years which was reduced on appeal to 24 years for their significant assistance.  This Court is well versed in the underlying trafficking matter and the proceedings arising out of them.  As Mr Leung has submitted, the roles of D1 and D2 under Chu Ho Wa supra were truly limited to being carriers of drugs and no more, if considered under the guidance now given in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which post-dates the proceedings referred to in Chu Ho Wa.  However, that case did result in the provision of a schedule of sentences handed down for trafficking in large amounts of dangerous drugs for which I am most grateful.

15.The leading authority for the sentencing of offenders who traffic in large amounts of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437, which indicates that quantities in excess of 15,000g are at the sentencer’s discretion but noting that 15,000g would attract a sentence of 30 years’ imprisonment after trial.  The difficulty which the Courts currently face, is that over the last 10 years, the amounts of dangerous drugs in which people traffic are growing ever larger.  It is becoming common to find a courier in possession of a suitcase of Ice, or, as here, Cocaine.  Our sentencing guidelines have not yet been revisited in detail to allow for this new phenomenon other than to sensibly suggest that any mathematical increase will be of little utilitarian value.

16.Looking first at the appropriate sentence for the counts involving drug trafficking without more.  The defendants each possessed double the upper Abdallah amount and could easily have been charged together with possession and trafficking of the whole amount given the background facts as we now know them to be.  What then is the true blameworthiness of each offender?  How should Herry be applied in this case?  Is it different by reason of age or just role?  What is the harm which would have been caused by such a large amount of Cocaine?  Is that culpability aggravated by the fact that both travelled here to commit an offence within the jurisdiction but intended to export the drugs to commit the harm in another jurisdiction?  How does the Court properly reflect the gravity of the offence against the individual culpability of the accused?

17.What we know is that the upper limit of sentence is one of life imprisonment.  That sentence, unless mandatory, should only be imposed in the most exceptional circumstances, such as those where the offender is considered to be a danger to the public and there is no reason to believe that at the time of sentencing that such danger will abate.  That is clearly not the case here.  They are a danger to the public but I do not believe they will offend again.  However, any sentence with a starting point in excess of 30 years is not far short of having a similar effect to a life sentence and, as Mr Davies has submitted, when facing a long determinate sentence a detainee needs to receive a sentence which does not crush all hope of a future productive life.  That does not mean that the courts in sentencing serious crimes should be lenient but it should be seen to be merciful.

18.This was a very large amount of drugs with a potential to cause serious harm.  Sun Victor clearly had a greater role than Kim Stephen but I am not going to enhance the substantial sentence they must serve for that role as there is little evidence to define what exactly it was.  What I can do however is give some credit to Kim Stephen for his lesser role and relative young age when compared to D1’s.  It is not a great discount but it marks the slight difference in their positions and ages if I discount his sentence by nine months from the starting point I intend to commence with.  The amounts which they were both in possession of were significant and I do not intend to differentiate between them once we are in the arena of such large amounts. Under Count One for Sun Victor I find that the appropriate starting point after trial for trafficking in 30.6kg of Cocaine is one of 31 years.  Under Count Three for Kim Stephen I find that the same starting point is appropriate for the trafficking of 29.7kg of Cocaine but that starting point will be reduced because of his role and difference in age evidencing who was likely to be the leader amongst the two of them and therefore there will be a notional starting point of 30 years and 3 months.  It is no lower than that because this was nevertheless double the Abdallah amount where my discretion is triggered.

19.They were to export those drugs.  There is no direct evidence of that but why else would the crime syndicate who ran this operation call them both in from Australia with a short turn round?  In the ordinary course of events, they should receive an enhancement of two years on their sentence for the aggravating feature of an international element. However, I am conscious of the principle of totality and the already large sentence which they must face and so I enhance their sentence by only one year each for that aggravating feature because it must be marked.  That would make the sentence under Count One, a notional starting point of 32 years and under Count Three against D2, a notional starting point of 31 years 3 months.  That one year extra however will be deducted for the one year I have chosen to discount both their sentences for the limited assistance given.  As a result, the sentence under Count one returns to 31 years for D1 and under Count 3, 30 years 3 months for D2.

20.For Count Two, which is an offence of dealing in the proceeds of drug trafficking, to the tune of $81,264 against D1 only.  I have taken into account all that has been said by Stock VP as he then was in HKSAR v Boma Amaso [2012] 2 HKLRD 33 and note that this sum was significantly less but that the summary of facts indicates that there were a number of other currencies in his possession, which adds to the implication that this operation was going to result in the export of these drugs.  I consider a starting point of two years to be appropriate which after a one-third discount for their plea, would be a term of imprisonment of 16 months.

21.They both very wisely pleaded guilty at the first opportunity.  Sun Victor will go to prison under Count one for a period of 20 years and 8 months, and 16 months under Count Two, 4 months of which will run consecutively to Count One making a total of 21 years.  Kim Stephen will go to prison under Count Three for a total period of 20 years 2 months.

Mr Gary Leung, SPP of the Department of Justice, for HKSAR

Mr Edward McGuinniety, instructed by Ivan Tang & Co, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Oliver Davies, instructed by King & Co, assigned by the Director of Legal Aid, for the 2^nd defendant