COURT: The defendant, Mr Chan Wai-hang, pleads guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
The particulars of the offence are that the defendant, on the 5th day of June 2013, at Hong Kong International Airport, Chek Lap Kok, Lantau, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1.97 kilograms of a solid containing 1.43 kilograms of cocaine.
Facts Admitted
On 5 June 2013, the defendant was intercepted and searched by the Customs & Excise Officers when he arrived at the Hong Kong International Airport from Sao Paulo, Brazil. Inside a concealed compartment in his suitcase, Customs & Excise Officers found, inter alia, six packages which were later found out to be 1.97 kilograms of a solid containing 1.43 kilograms of cocaine.
On being arrested and cautioned, the defendant admitted, inter alia, that the suitcase had been given to him in Brazil to be delivered and picked up by somebody in Zhuhai for a reward of HK$20,000, and he was not sure what the substance was.
In a video-recorded interview subsequently conducted, the defendant admitted that he had been recommended to go to Brazil to bring something back to Zhuhai by a female he had come to know on Face book. He flew to Sao Paulo on 24 May 2013 and the air ticket was paid for by a male. The expenses in Brazil were also paid for. He was given the suitcase and he was not aware of the concealed compartment, but he had been told that the stuff inside the suitcase was a kind of herbal medicine banned in Hong Kong. He had yet to receive the HK$20,000 reward.
The value of the cocaine seized had an estimated retail value at the time of the seizure of $1,906,960.
Criminal Record
The defendant has a clear criminal record.
Mitigation
The counsel for the defendant has made a very thorough and persuasive mitigation on behalf of the defendant. The defendant is now aged 19 and was 18 years of age when he committed the offence. He is the child of his father’s second marriage. His parents separated when he was aged 6 and from then until he was aged 13, he and his elder half-brother, who is a child of his father’s first marriage, were looked after by his grandmother. He was, however, neglected by his grandmother.
His father married for the third time when the defendant was aged 8. His mother also married again and had two sons. When the defendant was aged 14, he went to live with his mother and stepfather and the two half-brothers. The stepfather did not like the defendant and the defendant was often beaten up by him and thrown out of the home. It was in such a chaotic environment that the defendant was brought up. He was often cast around and was surrounded with rejection. In 2011 to 2012, the defendant’s mother divorced the defendant’s stepfather and the defendant had to live alone sometimes.
The defendant was an under-achiever in study and he started to work at the age of 17, first as a salesman in a duty-free shop for about half a year. In 2013, he came to know a girl through Face book who introduced him to the job of carrying goods from Brazil to Zhuhai for a reward of HK$20,000. The defendant was simpleminded and was attracted by the overseas trip and the reward. The defendant succumbed to the temptation. The defendant was never told clearly what was inside the suitcase.
Counsel for the defendant tendered to court mitigation letters written by the defendant, his mother, his father, a friend of his father, his former headmaster, two clergymen and his fellowship tutor. The defendant expresses a deep remorse for committing the offence in the letter and says that he is determined to turn a new leaf.
All the others express good opinion of the defendant in their letters, attributing the offence to the neglect by the family of the defendant during his bringing-up and the bad influence of undesirable peers. One of the clergymen says that he would introduce a job to the defendant on his release from prison. They all ask for the leniency of the court.
Counsel for the defendant points out that the defendant is a good-natured youngster and is a victim of internet crime. He co-operated with the police on his arrest and provided the telephone number of the girl who introduced him to the job to the police. Although the girl was arrested on 15 June 2013, no action was taken against her as she denied any involvement. Counsel for the defendant says that the defendant is a victim of a sad and pathetic childhood and he is now deeply remorseful.
She cites the case of HKSAR v Abdallah [2009] 2 HKLRD 437, saying that according to this case, the starting point in the present case is in the range of 23 to 26 years’ imprisonment. She asks the court to depart from the tariff and urges the court to adopt the approach in the case of HKSAR v Kwan Yiu Chung, CACC 395/2010, in which some discount in sentence was given to the defendant, who was aged 19, for trafficking 739 grammes of heroin and 160.42 grammes of morphine into Hong Kong from Malaysia, for his young age, being brought up in a broken family and being influenced by her boyfriend. In that case, the court adopted a starting point of 21 years’ imprisonment.
The counsel for the defence asks for leniency of the court for the defendant.
Sentence
According to the case of AG v Rojas [1994] 2 HKCLR 69, the sentencing guidelines for trafficking in cocaine are the same as those for trafficking in heroin hydrochloride.
The counsel for the defendant correctly points out that according to the case of Abdallah for trafficking in a quantity of 1,200 grammes to 4,000 grammes of cocaine the starting point is 23 to 26 years’ imprisonment.
The amount of cocaine involved in the present case is 1.43 kilogrammes and the starting point should therefore be approximately 23 years and 3 months’ imprisonment. This starting point is subject to enhancement of about 1 year imprisonment because of the international element involved in the offence.
The defendant was aged 18 when he committed the offence. Obviously, he was not of the age of extreme youth for which the court should give special consideration in sentencing. As pointed out by the counsel for the defendant, the defendant was brought up in a chaotic and pathetic family background. He had been neglected and rejected since childhood and no doubt this has had a significant negative impact on his upbringing and his character development.
Although the parents have now expressed support for the defendant, the court must say that such support has come far too late.
While the court does not have the right to interfere with the way the parents of the defendant live their lives, the court must say that they have contributed to the ruining of the life of the defendant because they had chosen the way of life which suited themselves at the expense of the defendant.
The court has much sympathy for the defendant but the court cannot lose sight that the defendant has committed a very serious offence.
Although the defendant is not of the extreme youth category, the court is prepared to give him some discount for his young age, his complicated background and his being influenced by others to commit the offence as was done in the case of Kwan Yiu Chung.
Taking all the circumstances, including the international element involved in the offence, into account, the court adopts a starting point of 22 years’ imprisonment.
The defendant’s previous good character and the good opinion of the defendant expressed in the mitigation letters cannot constitute a valid ground of mitigation in an offence of such a serious nature.
The only mitigation the defendant has is his plea of guilty. Giving the defendant credit for that, the court sentences him to 14 years 8 months’ imprisonment.