HKSAR v. Tang Wai Man and Another

HCCC268/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 268 OF 2008

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Before:  Hon Beeson, J

Date:    2 March 2009 at 10.35 am

Offence:  Trafficking in a dangerous drug (販運危險藥物)

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

COURT:  These accused were jointly charged with one count of trafficking in a dangerous drug, the drug being cocaine.  The quantity was substantial; there was 12 kilograms of a mixture which contained 8.05 kilograms of pure cocaine.  The estimated retail value in Hong Kong in July 2006 was $10.5 million.

Mr Tang, the 1st accused, indicated at the pre-trial review in January 2009 that he would enter a plea of guilty.  He offered to give evidence for the prosecution against his co-accused.  Accordingly, he gave a witness statement on the day after the pre-trial review and supplemented that with another witness statement on the day before the trial of his co-accused began.

Mr Garlock, the 2nd accused, maintained a plea of not guilty and his trial started on 18 February 2009.  The 1st accused pleaded guilty on that day.  He admitted the Summary of Facts and his sentence was adjourned to 2 March 2006, which is today, by which time it was expected that the trial of the 2nd accused would be finished.  The 2nd accused formally pleaded not guilty on the same day and, after a jury was empanelled, the trial proceeded. 

The 1st accused gave evidence about his and the 2nd accused’s involvement and was cross-examined at some length in the course of the trial.  His evidence, in total, lasted about one day.  The facts which the 1st accused admitted, and which emerged from the evidence at the trial of the 2nd accused, showed that the two men had been recruited in July of 2006 to go to Vancouver to collect something. 

The 1st accused admitted he knew it was cocaine.  That was denied by the 2nd accused who said he believed he was to collect and bring back to Hong Kong the personal belongings of a wealthy man. 

The two men apparently did not know one another before the journey began.  The 1st accused said they met on 4 July 2006 at a guesthouse in Hong Kong.  Although the 2nd accused denied that that was the case, it was clear that the jury did not accept his account on that, or on other, more important, points. 

Communication between the two accused was minimal as the 1st accused did not speak English and the 2nd accused, who was referred to by the 1st accused as ‘the Westerner’ and addressed by him as ‘Ah Gwai,’ did not speak Cantonese or Mandarin.  They managed to communicate with very simple English and gestures.

Their journey to Vancouver began on 6 July 2006.  The 1st accused was given the tickets, hotel vouchers and $4,000 Canadian which he was to share with the 2nd accused to be used for expenses.  He said that he divided the money between them, although the 2nd accused denied that he had received his share.  I note, however, that the 2nd accused had $3,200 Canadian on him when he was arrested in Hong Kong and it was not in dispute that the joint daily expenses in Vancouver had been paid for entirely by the 1st accused. 

The two men did not sit together on the flight but, in Vancouver, went to the hotel where a double room had been pre-booked for them.  There they waited for someone to contact them.  The 1st accused said he spent most of his time watching television.  The 2nd accused gave evidence that he was busy with his mobile phone business.

On 10 July 2006, a Chinese male came to the hotel and handed over four suitcases, two for each of the accused, which they were to take back as their own luggage to Hong Kong.  They were instructed to jettison their own luggage and put their personal belongings into the suitcases they had been given.  The Chinese man spoke to the 1st accused in Punti and although the 2nd accused denied it in evidence, it was the 1st accused’s evidence that the man also spoke to the 2nd accused in English.

In their room, the two men inspected the contents of the suitcases.  Apart from miscellaneous items, each of the suitcases contained a large plastic canister marked ‘Lean Mass Gainer’ which purported to be a proprietary food supplement.  Inside each of the four canisters, concealed at first sight under what was protein powder, was a plastic bag containing 3 kilograms approximately of mixture, that being the cocaine.

It was the 1st accused’s evidence that both men inspected the canisters and that the 2nd accused asked him what was in the plastic bags.  He told him it was cocaine.  The 2nd accused said in evidence that the canisters were sealed with a foil or plastic seal with red writing on it.  This was denied by the 1st accused and, certainly, none of the containers had seals when they were inspected in Hong Kong by the police.  The 2nd accused said he was “95 per cent sure” that he had not inspected the containers in any event.

The 1st accused and his companion returned to Hong Kong on 11 July 2006 and arrived in Hong Kong on the evening of 12 July 2006.  They were immediately stopped, searched and arrested by Narcotics Bureau officers after collecting their suitcases from the baggage carousel.  Both accused were subjected by separate police teams from the Narcotics Bureau to a body search which yielded nothing suspicious.  Shortly thereafter, the baggage of each was searched.  The four containers were discovered and the four bags of what was later shown to be cocaine were found.

The 1st accused made an immediate admission that he had been to Vancouver to collect drugs to bring back to Hong Kong and said he had done so in the expectation that he would be paid HK$20,000 on handing over the drugs in Hong Kong.  In his video interview some time later, he said they had been instructed to take the luggage to a hotel on arrival in Hong Kong and wait to be contacted.

The 2nd accused made a similar admission which, at trial, he denied he had ever made, claiming that the police had invented it.  He also alleged that he had been manhandled, assaulted, pressurised and refused access to a lawyer and his consular representative.  He elected not to sign any documents or declarations.  He did, however, sign the Notice to Persons in Custody and a receipt for his personal items, including various sums of money.

The 2nd accused exercised his right to silence and later, at the Narcotics Bureau, refused to give a video interview or to answer any of the questions put to him under caution.  He refused to sign anything to that effect.  Later, when charged, in response to the question whether he had anything to say, he wrote “No, thank you” but declined to sign the reply.

After his initial admission at the airport, the 1st accused, Mr Tang, later gave a video interview in which he gave further details about what had happened and some details about his travelling companion, the 2nd accused.  Mr Tang admitted that he had told several lies in this record of interview and corrected some of them in his witness statement and others later in a second witness statement. 

These lies appeared to be rather pointless as they did not seem to confer any benefit on the accused or, indeed, make any difference to his position.  Overall, the 1st accused’s account of events as given in court was largely what he said in his video interview and his witness statements.

At his trial, the 2nd accused elaborated on his account of going to Vancouver to retrieve the personal belongings of a man described as wealthy.  He denied Mr Tang’s account of events and claimed that he himself was a dupe.  He suggested that although he and Mr Tang had inspected the suitcases, that the containers were sealed, and went on to describe what could have been an opportunity, while he and the 1st accused were out of their room, for someone to have put the drugs into the containers without their knowledge.  The 1st accused denied that such an opportunity had ever occurred.

In considering sentence, I note that the 1st accused had a criminal record which started in 1989 and ended in 2005 and which comprised 14 theft convictions, most of them being for shoplifting.  He had no dangerous drug offences recorded and said he did not have a drug habit.  That is likely to be true as I note that he went to Detention Centre for one offence and he would not have been accepted for the Detention Centre program if he had had a history of drug-taking or addiction.

Mr Tang told the court that he had agreed to collect the dangerous drugs because he wanted money for an operation that his mother needed for a leg injury she sustained at work.  He had been recruited at a discotheque in Shenzhen by someone called ‘Ah Kin’, to whom he had mentioned he was in need of money.  By the time of his arrest, he had received no money for his work other than the $2,000 Canadian he had been given as his share of expenses of the trip to Vancouver.

The major mitigation was the 1st accused’s plea which he had advised at any early stage and for which he was entitled to a full one-third discount.  He relied in mitigation too on his having given evidence for the prosecution against his co-accused.  The question to be decided was what the starting point for sentence should be for this offence and what additional level of discount should be given to him for having given evidence.

Mr Grounds, who appeared for the 1st accused, relied on the mitigatory value of his immediate admission, his making of the video interview, his early indication of plea, and the provision of two witness statements.  He had also given evidence against his co-defendant.  He put before the court the cases of The Queen V Ng Muk Kam CACC685/1993, HKSAR V Chan Man Chau & other CACC503/1999 and The Queen V Szeto Tsz Kwong CACC798/1995, all cases which look at sentences for larger quantities of dangerous drugs.

This accused does not come into the category of ‘super-grass’ but he does come into the category of someone deserving of a discount of 45 to 50 per cent.  In my view, he gave good evidence in court, albeit he left some of his amendments rather too close to the date of trial to be sensible.  He did, however, tell the court which items in his video interview and his witness statements were inaccurate or untrue. 

The level of discount, taking into account his plea and the way he gave evidence is fixed at 50 per cent.  It was put to this accused in court that he had made up the details of his evidence in order to frame his co-accused and to ensure that he was convicted.  It was put to him that he had done so to ensure that he himself would receive an additional discount. 

Such additional discounts are given to encourage dishonour amongst thieves, to assist law enforcement authorities to secure convictions more easily, and to shorten a trial or to negate the need for one.  In some instances, the discount is given in part to minimise the risk that the convicted witness will suffer revenge attacks by the person against whom he has given evidence, or his associates.  There is no suggestion by this accused that he was at risk of such a revenge attack in prison.  Nor did Mr Grounds state that that was the position.

The 2nd accused was in a somewhat different position.  He was found guilty after trial by a jury verdict of six to one.  The jury, by their verdict, indicated that they had not accepted his account of why he went to Vancouver.  The account of events as he gave it in court sounded preposterous; even allowing for his having a great deal of naivety and misplaced trust, it is very difficult to see how the account that he gave could have been given any credence whatsoever.

The 2nd accused is aged 51 years.  He is an educated man, married with four children.  He has been in business on his own account and he gave evidence and produced written references to show that he had been involved as a volunteer and, in later years, as a salaried employee in anti-drug programs in the USA, of which country he is a citizen.

His account of agreeing, at the behest of a fairly recent acquaintance in Shenzhen, to collect from Vancouver the personal belongings of a wealthy man whose name he did not know or ask, in exchange for travel expenses, food and HK$10,000 seemed unlikely to say the least.  It was difficult to understand why it was not possible for such a man to post his belongings, or to despatch them by a courier service to Hong Kong.

For the 2nd accused to confirm an arrangement with a man who did not speak English, who gave none but the bare details of why he was going or what he was to do on arrival, who did not tell him when he would depart or when he would return, and who allowed him to find out by the effluxion of time that he was to travel both ways with a young man he did not know and who spoke no English, was scarcely to be believed. 

The 2nd accused said he asked no questions but simply followed where he was led.  When taken to the airport, another man who did not speak English gave him a little cash to be used for food, assured him that his task would be easy, and left, reassuring him “no weapons, no drugs.”  Even at that juncture, the 2nd accused said, it never occurred to him that there might be something amiss.  Again, he did not ask himself why the man should assure him there were no drugs involved.  Most people would have been suspicious of the purpose of the journey by that time, if not a lot earlier.

In Vancouver, after the suitcases were delivered, the 2nd accused said he did not think it odd that two men had been sent from Hong Kong to collect four suitcases, each containing an elephant-shaped cushion; on his account, 15 to 20 packs of cereal; a large can of protein powder; assorted garments of no particular value or distinction and to bring them back to Hong Kong.

Clearly, his dogged refusal to admit, under cross-examination, that any of these matters was odd, or should have made him suspicious, made his evidence unbelievable.  In any event, the jury must be taken to have accepted the prosecution evidence of his admission of guilt at the airport, as well as the evidence of Mr Tang whose evidence, if accepted, made it clear that the 2nd accused had knowledge that what he was bringing into Hong Kong was cocaine. 

Various letters were put before the court in the course of the trial, and relied on for mitigation.  One was from the House of Representatives of the State of South Carolina, a Senator Glenn L Hamilton, who indicated that the 2nd accused is the son of one of his friends, and was from a family of outstanding reputation.  He says, “This seems so unlike the man I knew who was very outspoken against illegal drugs, even helping to campaign in our local area against them through a program called ‘Just say no to drugs’.”. 

Similar comments were made by Dr Ronald A Brooks, who set out the fact that, the 2nd accused worked at a drug rehabilitation home in Texas in 1977 and 1978; that from 1987 to 1989, he worked part-time in President Reagan’s ‘Just say no to drugs’ program and that from 1990 to 1993, he sponsored vending machines and collected money to help combat the drug problem in the United States.  Then from 1994 up to 1997, he also worked in the Special Olympics for Disabled Children in fund-raising, with the purpose of raising money for the ‘Just say no to drugs’ program. 

His father wrote a letter confirming that his son had always had an antipathy towards drugs.  That does make it doubly tragic to see to what extent this accused has fallen at this time.

In considering the starting point for trafficking in this amount of cocaine, any sentence must be high as it is intended to have a deterrent effect by a sentence of draconian length.  Taking Lau Tak Ming guidelines which apply to both cocaine and heroin into account, the starting point after trial has to be higher than 20 years.  In Lau Tak Ming, the tariff sentence for a quantity of cocaine or heroin between 400 and 600 grammes was suggested as 15 to 20 years’ imprisonment.

In Lau Tak Ming it was recognised that 20 years for 600 grammes and above was a lengthy and condign sentence.  I was reminded by Mr McNamara for the prosecution that the courts in Hong Kong considered that the importation of dangerous drugs into Hong Kong has been and is regarded as an aggravating feature.

The factors to be taken into account by a court are the quantity and value of the cocaine as well as any international aspect in this case.  There was no evidence whether Hong Kong was the final destination for the cocaine or whether some, or all, of it was to be transported elsewhere.  Nor was there any suggestion in this case that either of the common aggravating features, such as repeat drug offences or of an organising role, applied to either of the accused.  I accept that these accused are “mules” for the purposes of this offence.

The court stressed in Lau Tak Ming that the sentence length should not be adjusted upwards in proportion to the increase in quantity.  I also note that it is possible that there may arise an element of injustice in placing so much reliance on the quantity trafficked when the trafficker is no more than a mule, because the mule has no choice or say in the quantity to be carried and it is often a matter of chance whether the mule is told to carry below or above 600 grammes of drug. 

There is no evidence before the court to show that either of these accused was involved in the administration of the drug transaction, or any evidence that either accused profited from the transaction itself.

Having considered the matter carefully, I am proposing to take a starting point of 25 years in this case.  In respect of the 1st accused, I give him a discount of 50 per cent and sentence him to 12 years and 6 months’ imprisonment.

In respect of the 2nd accused, I take a starting point of 25 years.  I give 1 year’s discount for his positive good character prior to these offences and his clear record, and sentence him to 24 years’ imprisonment.