HKSAR v. Hui Siu Cheong David

DCCC331/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 331 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge under section 40(1)(c) of the Dangerous Drugs Ordinance, Cap.134. He has been convicted of doing an act preparatory to or in furtherance of the manufacture of a dangerous drug.

2.PW1 and PW2 of this case agreed to courier a chemical, Methlephedrine, to Australia in May 2010.  Both men were either in need of money or wanted to earn some quick money and agreed to take a quantity of this chemical to Australia.  It was this defendant that met first PW2 in March 2010 and explained the chemical to be taken to Australia was for the purpose of manufacturing dangerous drugs there.  He agreed to do it for a reward.  It was this defendant that met PW1 in April 2010 and explained the job was to export - to take  - a chemical to Australia and offered a reward of $60,000.  It was this defendant that provided the money to pay for air travel arranged for 8 May 2010 to Australia.    

3.At the same time, it was this defendant that bought loose fitting clothing and shoes for these witnesses, that he said would be hollowed out to pack with this chemical. 

4.On 7 May 2010, the day before travel was to commence, in the late evening the defendant arranged to met both PW1 and 2 in Shenzhen, Mainland China.  In a restaurant in Shenzhen he told both these witnesses that this chemical was called methylephedrine and could make a dangerous drug but was not a dangerous drug in itself, so even if they were arrested it was not too serious a matter. 

5.Later on that evening in a hotel room an unknown male, the defendant and these two witnesses gathered to prepare for the journey.  It was the defendant that strapped the bags of this chemical to both PW1 and PW2's legs, as well as stuffing their shoes.

6.After this was done, both witnesses left Mainland China, proceeded directly to Hong Kong Airport to catch a flight to Australia.  In the departure lounge, a team of Customs officers found them suspicious, searched both witnesses and they were arrested before departure.

7.PW1 was found to have eight bags containing a total of 3.85 kilogrammes of this chemical on his person.  PW2 was found to have similarly eight bags containing 3.27 kilogrammes of this chemical on his person.

8.A fingerprint belonging to the defendant was found on a bag that was strapped to PW2.  

9.Both PW1 and PW2 pleaded guilty in January this year in DCCC985/2010.  After their plea and mitigation, Judge Longley took a starting point of 5 years’ imprisonment and ultimately sentenced them to 3 years and 4 months each.

10.Both witnesses provided information to the Customs and Excise of the defendant’s details and role leading to him subsequently being arrested.  At an identification parade held, both witnesses identified the defendant. 

11.It is not disputed and set out in the Summary of Facts that this chemical methylephedrine is used in a manufacture of N,N-dimethylamphetamine hydrochloride, a drug often referred to as NNDMA, which is in itself is a dangerous drug.  It has been estimated that this quantity of chemical would yield a quantity of 6.58 kilogrammes of NNDMA, a very large quantity.  

12.I have heard mitigation and the background of the defendant.  The best mitigation today is the defendant’s plea of guilty. The defendant has a poor criminal record, of which one is similar.  In May 2011, only recently, the defendant was sentenced to 10 years’ imprisonment in a High Court case for trafficking a quantity of ketamine and “Ice”.  The date of that offence was 4 September 2010.  The defendant was caught acting as a courier carrying a large quantity of these two types of drugs.

13.Mr Siu for the prosecution has provided me today with some authorities to assist in sentence and I have the benefit of the transcript of the sentencing of PW1 and 2 by Judge Longley.  As noted by Judge Longley, there are no guidelines or recommended tariffs for this offence, or indeed for this type of dangerous drug made from this chemical.  However, he notes, and I repeat, the courts have said time and time again, sentences for manufacturing dangerous drugs and doing acts preparatory to manufacturing dangerous drugs should not differ significantly.  However, I do note that the maximum sentence for manufacturing dangerous drugs is a life term imprisonment, whereas the maximum for a section 40 offence as we have here is 15 years’ imprisonment.

14.I have also looked at an authority, HKSAR v Ngan Ka Chun and Tsui Wai Sing, Ricky, CACC12/2008, which provides useful information and discussion about the potency of NNDMA and its comparison to the potency of “Ice” and Ecstasy.  That authority, unlike here, deals with trafficking in NNDMA itself.  In fact, the Court of Appeal there found a starting point of 15 years appropriate for 4.68 kilogrammes of NNDMA. 

15.I have also looked at the facts and sentence of DCCC1018/2010, where the facts of that case are almost exactly the same as the facts of this case.

16.Two defendants were arrested at Hong Kong International Airport on their way to Australia with the same chemical methylephedrine strapped to their bodies.  Both defendants were carrying a total of about 6 kilogrammes of the chemical.  That court found a starting point of 5 years’ imprisonment appropriate.  That authority referred to an older authority of R v  Yee Wing Leung, CACC159/1997.  Mr Siu has provided me with a copy of that authority today and I have had sight of it.      

17.Having considered the facts of this case and your role, I find it a more serious role than that of the 1st and 2nd prosecution witnesses.  I accept that as submitted by defence counsel that you may not necessarily be the mastermind or top-dog, but I would say that you are not just a mere cog in the wheel and I find it appropriate that this defendant would attract a higher starting point than PW1 and PW2 for his role.

18.Having considered the quantity of the chemical, the facts of the case and mitigation, I find a starting point of 6 years’ imprisonment appropriate.  You will be entitled to a discount of 2 years for your plea of guilty.  For this offence you are sentenced to 4 years’ imprisonment.  

19.You are now serving a sentences of 10 years’ imprisonment for the High Court case, HCCC28/2011. I take into account the totality principle.  The objective is to ensure an overall proportionality between the offences committed and the sentences imposed.  I will make part of this 4 year sentence I just imposed concurrent to the sentence you are presently serving to recognise the enhanced criminality whilst respecting totality. 

20.I will order that 1 year of this 4 year term be served concurrently to HCCC28/2011 and the balance of 3 years to be served consecutively.