HKSAR v. Leung Kwok Ho

[English Translation – 英譯本]
HCCC124/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 124 OF 2010

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Before: Hon Barnes J

Date: 8 June 2010 at 10:33 am

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

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

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COURT: The defendant, Leung Kwok Ho, was indicted of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. The defendant pleaded guilty to the charge before me.

The facts admitted by the defendant are very simple. The defendant was stopped and searched by Customs Officers when she entered the territory through the Lowu Checkpoint. The Customs Officers found in the backpack which the defendant was carrying on her back a substance later confirmed to be 985.10 grammes of a crystalline solid containing 972.08 grammes of methamphetamine hydrochloride (commonly known as ‘ice’). In fact the defendant attempted to flee by pushing away the Customs Officers, but she was arrested in the end. She remained silent under caution. The then market value of the drugs involved was estimated to be in the approximate range of $197,000 to $280,000.

The case took place on 4 July 2002. The defendant was tried on 4 February 2003 in the High Court, where she was convicted and sentenced to 21 years’ imprisonment. Subsequently on 22 April this year, the defendant’s appeal was allowed, the conviction quashed, and the case remitted for retrial. The defendant pleaded guilty before me today in the retrial.

Regarding the background of the defendant, she is now 39 years of age, divorced, with education up to Form 2. As far as criminal records are concerned, she has 11 previous criminal convictions, 3 of which are drugs-related. The case concerning the last conviction, which is Trafficking in a Dangerous Drug, actually took place on the same day of the present case. So regarding the background of the defendant, she actually has 10 previous criminal convictions, 2 of which are drugs-related.

In mitigation Mr Hung, counsel for the defendant, referred to some similar cases, in particular the case of Chong Vui Leong (CACC 351/2008). There is a co-defendant in the same case called Chok King Foh (CACC 351/2008). In submission, Mr Hung, citing the facts and quantities of drugs in the case, submitted that the proper sentence for the defendant in the present case should be one of 19 years or so. Mr. Hung also highlighted the defendant’s persistent efforts to further her studies in pursuit of self-enhancement during the past 8 years in prison, so much so that she had, in effect, totally reformed herself. Mr. Hung invited the court to exercise discretion to give the defendant a one-third discount instead of the usual one-fourth discount. The submission put forward by Mr. Hung was that where the circumstances warrant, the court should have regard to rehabilitation while consider passing a deterrent sentence, so that a positive message could be sent to society.

The defendant herself has also written to the court, expressing her remorse, giving a full account of what she had gone through in reforming herself, and asking for leniency.

As regards sentencing, in the case of Ching Kwok Hung [1991] 2 HKLR 125, the Court of Appeal, in laying down sentencing guidelines, held that the starting point for trafficking in over 600 grammes of dangerous drug “ice” should be one of 18 years and upwards upon conviction after trial. So what does it mean by upwards? It was actually set out very clearly in Ching Kwok Hung that the starting point must be beyond the “cut off” sentence of 18 years. In considering which starting point beyond the “cut off” sentence of 18 years to take, the court should bear in mind that it should refrain from simply applying mathematical progression, because in doing so, injustice would be caused in sentencing, there are such dangers. The Court of Appeal also pointed out that the judge could consider giving allowance in sentencing for circumstances such as a plea of guilty, whether assistance had been given to the police, and whether the defendant had any previous criminal convictions, etc. In the appeal case of Lai Yung Ngai, CACC 335/2008, which was decided on 13 April this year, the two appellants, one with surname Lai and the other Cheung, were arrested at the Departure Hall. They had air tickets and travel documents to go to Australia. Lai had 985.68 grammes of ‘ice’ strapped to his legs. The two of them admitted that they were taking the ‘ice’ to Australia for monetary rewards. Lai was 35 years old with a clear record. Cheung was 38 years old with three previous convictions, none of which was drug-related. Both of them pleaded guilty in the magistracy and were committed to the Court of First Instance of the High Court for sentence. The judge took a starting point of 21 years and sentenced both of them to 14 years’ imprisonment. On appeal, the Court of Appeal found that the starting point of 21 years was not manifestly excessive, and refused their application for leave to appeal against sentence.

Of course, in the two cases cited by Mr. Hung (i.e. the case of Chong Vui Leong & Chok King Foh), the respective quantities of the ‘ice’ involved were 1,197.99 grammes and 1,685.51 grammes, which were in fact more than 1 kilogramme. The Court of Appeal found the respective starting points of 22 years and 24 years to be manifestly excessive and reduced them to 19 years and 3 months, and 21 years respectively. Of course, the circumstances of the offence committed by the latter were relatively more serious, because he solicited the former to traffic in dangerous drugs.

I am of the view that the facts of each individual case were not exactly the same, and that we cannot come to the conclusion of which cases to rely on by simply drawing a comparison on the sole basis of the quantities of drugs. There is another case that serves as an example: the case of Kao Chien Kuo (CACC 419/2007), which was decided by the Court of Appeal on 18 December 2008. As shown in the facts of the case, a Taiwanese was intercepted on departure at the Hong Kong airport. He was a passenger departing from Hong Kong, on a flight bound for Jakarta, Indonesia. It was found that some dangerous drugs were strapped to his legs. The dangerous drugs were confirmed to be 946.97 grammes of ‘ice’. The defendant also pleaded guilty before a magistrate, and was committed to the Court of First Instance of the High Court for sentence. The judge accepted the proposal advanced and took a starting point of 19 ½ years. The sentence was one of 13 years after a one-third discount. On appeal, the Court of Appeal said that the starting point of 19 ½ years could not be criticized, and that the sentence was not excessive at all. The Court of Appeal further said that, indeed there was also nothing wrong with taking a starting point higher than that of 19 ½ years. As the appellant in the case was a Taiwanese, there was no information to show that he had committed any offences in Hong Kong before; he was therefore supposed to be a man of clear record.

In the present case, the defendant brought approximately 1 kilogramme of ‘ice’ from the mainland to Hong Kong. The defendant did not say anything under caution, and it followed that the ultimate destination of the ‘ice’ was not shown in any of the information available. Regarding the present case, the defendant was not a first time offender. She had as many as 10 previous criminal convictions, two of which were drug-related, i.e. Possession of a Dangerous Drug. I had also taken that into consideration accordingly.

Having considered the facts surrounding the present case, the defendant’s background and the sentences imposed in the cases I have just referred to, I am of the view that a starting point of 20 years is appropriate. The defendant pleaded guilty before me, but that was not a timely plea of guilty. At a retrial, the usual discount on sentence is 20 to 25 per cent (i.e. a one-fifth or one-fourth discount).

I have taken into account the very forceful mitigation advanced by Mr. Hung, and the fact that the defendant displayed a positive attitude and made efforts to reform herself over the past eight years in prison. I am of the view that although the defendant may ask for a remission of sentence under the mechanism of the ‘Long–term Prison Sentences Review Board’, there is still some minimal room for me to exercise discretion to reduce the sentence by more than 25 per cent in the present case. Based on the calculation of a 25 per cent discount and by taking a starting point of 20 years, I arrived at a sentence that should be one of 15 years. In other words, the sentence is one of 15 years after a one-fourth discount. A sentence of 13 years and 4 months is arrived at, if the calculation is based on a one-third discount, while it would be 14 years and 7 months, if the calculation is based on a 27 per cent discount. For the sake of encouraging the defendant to persevere on the long road to rehabilitation, I exercise my discretion to reduce the sentence to 14 ½ years.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.