COURT: There are now two cases before this court for sentence, that is, 224 and 304/2014.
In 224, there are three defendants, and they are each charged with one count of trafficking in a dangerous drug. The nature and the amount of drugs are the same, 9.76 kilogrammes of “Ice”. The three defendants, Tan, Lu and Tang have all pleaded guilty to their respective charges and admitted the Summary of Facts.
To put very simply, the case against these three defendants is basically that the police found the drug in their three suitcases which had been checked in by the defendants individually for the flight to the Philippines on the date as specified in the charge, that is, 29 November 2013.
After their arrest, the three defendants had confessed in their video interviews, and a person, Mickey, was mentioned as the one who had made the arrangement for this trafficking operation to the Philippines.
Based on the information obtained, the police managed to locate Mickey on another flight to the Philippines. He was arrested on the same day, and he became the defendant in case 304.
Mickey Tsoi Chung-fuk was charged with two counts of trafficking. The allegation of the 1st count was that he was the person behind the operation of the taking of the drugs to the Philippines by Tan, Lu and Tang. And the 2nd count was made based on the drugs found in the unit of 18A of the building in Sheung Shui. To these two charges, Mickey pleaded not guilty.
After the trial, the jury acquitted Mickey of the 1st count and convicted him on the 2nd. And in the 2nd count, the drugs involved was described in three lots, that is, 1.32 kilogrammes of cocaine, 10.56 kilogrammes of cocaine, and also 0.41 kilogrammes of ice. In other words, the total amount of cocaine would be 11.88 kilogrammes.
I would mention in passing that the trial in 304 was conducted in Chinese, but for the sake of convenience, and with the agreement of the defence, the sentence is now to be done in English.
Mr Marray represents Tan Shi-hok. Tan is now 50 years of age, he was born in Hong Kong, he had been a transportation worker. He is married, two times, and has three children. He has a criminal record, but the offences seemed minor, and had taken place quite a long time ago.
Mr Marray says in his mitigation that the defendant had an elderly mother with poor health. The defendant had previously been a proper businessman, but the failing of his business led to financial pressure. And as a result, the defendant decided to take part in this trafficking activity.
Mr Marray emphasised that the defendant had pleaded guilty and testified in court as a prosecution witness. Mr Marray reminded the court that because of the date of the offence, the guideline of Ching Kwok Hung should be followed. He also referred this court to the case of Tan Chiew Kok CACC 436/2010, in which 25 years was imposed for a similar amount of ice. Counsel said that although that appeal was only on conviction, the sentence imposed would be a helpful reference. However, counsel agreed that an upward adjustment would be necessary for the presence of international element.
Furthermore, counsel asked for 50 per cent discount by virtue of the defendant’s plea and his giving evidence in court. In this regard, he had cited in support cases which were HKSAR v Chan Sau Hing CACC 211/2001, and also HKSAR v Kay Sik Hong Billy CACC 145/2011.
The 2nd defendant is Lu Xianyan. She is represented by Mr Christopher Wong. Mr Wong first submitted several letters written by and on behalf of the defendant asking the court for a more lenient sentence. Counsel pointed out that the defendant, aged 27, had a clear record, and she came from a rural area in the mainland. She was brought up by her grandfather because her parents had deserted her when she was still very young. Later, she was married to a Hong Kong citizen. She thought she would then have a better future, but her mother became ill with cancer. The defendant therefore faced financial difficulties because of her mother’s illness, and unfortunately, she took the risk to participate in this crime for the money.
Counsel reminded this court that the defendant had given witness statement, pleaded guilty, and testified in court. Similarly, counsel asked for a 50 per cent of reduction for the sentence. He agreed that the tariff case of Ching Kwok Hung should be followed.
The 3rd defendant is Tang Jingmei. She is represented by Mr Whitehouse, and he also agreed that the applicable authority should be Ching Kwok Hung. The defendant is 28, and normally resided in mainland. Counsel said that her client can be described as the least culpable. And this defendant has a clear record and she was married to a Hong Kong citizen.
Then Mr Whitehouse raised two points. One was about the international element, and the other about the 50 per cent discount of sentence. What he proposed was that as the operation to take the drugs to the Philippines was unsuccessful, it could be argued that there was no actual international element involved.
Further, counsel said that the 50 per cent discount was only the usual discount. There was nothing to prevent the court form granting a higher discount in this case. He had referred to a case where the appellant was given 55 per cent on appeal, as the appellant had testified two times in court.
I am unable to accept both of these submissions. The defendant was caught on a plane, ready to take off to the Philippines, and the drugs was found inside her checked-in luggage. I would say the international element was clearly present.
As to the request for a more than 50 per cent discount, I accept that the defendant had testified in the trial against Mickey Tsoi, but it took place only once, not twice. I could see no justification to allow a higher than usual discount for the plea and the giving of evidence in court.
Now, for these three defendants, they have each been convicted by their own plea of trafficking in 9.76 kilogrammes of “Ice”. That is close to 10 kilogrammes of “Ice”. In a way, these three defendants could be said to be lucky, as they were charged separately and not jointly for the total amount of ice, because on the face of it, they were involved in the operation jointly, or it may be said that they had conspired to do so jointly. However, based on the information before this court, I am unable to say whether the decision to charge separately was a result of the defendants’ agreement to testify, or it was simply because of issues of evidence. In any case, I do not think it is useful to go into such matters at this stage.
For the trafficking of this extremely large amount of “Ice”, Mr Iu for the prosecution agreed in principle that the court should still look to the case of Ching Kwok Hung for tariff consideration in view of the date of offence, but he reminded the court of the extremely large amount of drugs involved. While I agree with the case of Tan Chiew Kok as referred to by Mr Marray is a useful reference, but in the circumstances of the present case where three persons were involved in the operation, I shall adopt 26 years as the basic starting point. Then I would make an upward adjustment of 2 years to reflect the international element, and therefore the adjusted starting point will be 28 years.
Now, all the defendants have pleaded guilty, given witness statements and came to court to testify against Mickey Tsoi in his trial. It is true that the 1st charge was acquitted, but I cannot say that these three defendants should be deprived of a reduction for what they have done to assist the prosecution and the police. It appears to me that they have given evidence in court to the best of their abilities.
In these circumstances, I shall grant the 50 per cent discount to the three defendants for their pleas and assistance rendered. But other than that, I do not think there is any other mitigating factor which would allow a further reduction. These three defendants had participated in the crime knowingly for the financial reward of HK$100,000.
The defendant in the case of 304 is of course Mickey Tsoi. He is represented by Mr Philip Wong. As I said, he was convicted of the 2nd count, which involved 11.88 kilogrammes cocaine and 0.41 kilogrammes of “Ice”.
This defendant is now 45. He was born in Yunnan and came to Hong Kong in 1981. He has a clear criminal record, and used to be a transportation worker. Mr Wong told this court that the defendant is married and has two children. The son is 17 and daughter 15. Counsel told this court that recently, his son was found to have suffered from leukaemia. After treatment, he could now go back to his studies, but the risk of relapse...
(Fire alarm went off)
Now, counsel accepted that for this amount of cocaine, the sentencing tariff would be in the range of 26 to 30 years category, as stated in the case of Abdallah. Counsel suggested that this court might consider adopting 28 years as a basic starting point, and to add about 5 years to reflect the amount of “Ice”. Counsel argued further that there was no aggravating factors against the defendant, and there was no clear basis to suggest an international element involved in the 2nd charge.
In terms of mitigation, counsel mainly relied on the fact that the defence had agreed to a lot of the facts with the prosecution. That would have the effect of saving a lot of court’s time.
After consideration, I decide to take the adjustment approach to decide on the starting point for this count.
First, I agree that the basic starting point should be 28 years. However, for the amount of “Ice”, I shall add 6 years. It must be remembered that for 300 grammes of ice, the sentence would already be 14 years. But I do agree that the court should take a global view and I believe 6 years’ upward adjustment would be appropriate in the circumstances. Hence the adjusted starting point is 34 years.
Further, I agree that in terms of the second count alone, it is not entirely clear whether the drugs would be for export purpose. I suspect that it is, but I cannot be sure.
I also suspect the defendant is not simply a person to look after the unit, but with the acquittal of the 1st count, I cannot reach any conclusion that he must be a so-called senior player.
On the other hand, I cannot deny that the defence had accepted much of the prosecution case, and those were included in the Admitted Facts. As a result, the trial was better focused and time was, to some extent, if not substantially, saved. I believe the defendant is entitled to some discount because of this. I shall grant a 6 months reduction for this reason, and I see no further effective mitigating factor available to the defendant.
Therefore, in the case of 224, each defendant is sentenced to a term of 14 years.
In the case of 304, for the convicted 2nd count, the defendant is sentenced to a term of 33 and a half years.