A A
B B
DCCC 777/2019
C [2019] HKDC 1597 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 777 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I LIN Chaoyang I
-----------------------------
J J
Before: HH Judge Sham
K K
Date: 26 November 2019
L Present: Mr Brian Chan, Counsel on fiat, for HKSAR L
Ms Karen Lau instructed by Messrs. Louis K.Y.Pau & Co. for
M M
the defendant.
N N
Offence: [1] Remaining in Hong Kong without the authority of the
O
Director of Immigration after having landed unlawfully in O
Hong Kong (在香港非法入境後未得入境事務處處長授權
P P
而留在香港)
Q [2] Trafficking in a dangerous drugs (販運危險藥物) Q
R R
--------------------------------------
S S
REASONS FOR SENTENCE
T
-------------------------------------- T
U U
V V
- 2 -
A A
B B
1. The defendant, an illegal immigrant from the Mainland,
C admitted to drug trafficking – 174.41g of a powder containing 2.89g of C
nimetazepam, 0.86g of para-methoxymethamphetamine and 21.66g of 3,4-
D D
methylenedioxymethamphetamine (commonly known as Ecstasy).
E E
2. On the night of 17 April 2019, customs officers stopped the
F F
defendant on the footbridge at Tin Wan Praya Road, Aberdeen and
G discovered the drugs in this case, which were put in 152 plastic packets, in G
a paper bag he was carrying.
H H
I 3. The street value of the drugs in question is estimated to be I
between $35,776 and $46,696.
J J
K 4. The defendant told the customs officers that initially he K
planned to come to Hong Kong to work to earn some money, but his
L L
application for a two-way permit was rejected, so he chose to sneak in by
M sea through a snakehead about a week before. M
N N
5. Subsequently, the defendant was charged with two counts of
O O
offence to which he pleaded guilty, namely:
P P
Charge 1: - Unlawful remaining1;
Q Q
Charge 2: - Drug trafficking2.
R R
6. The defendant (28), a married man with two children - a son
S S
(5 months only) and a daughter (3), is a person of clean record. His father
T T
1
Contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115
2
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance 134
U U
V V
- 3 -
A A
B B
(61), a cook, is running a food stall in the Mainland and the defendant is
C helping in his father’s business. C
D D
7. The court heard that whilst working at his father’s stall, the
E defendant came across a customer who suggested to him to come to work E
in Hong Kong for big money, i.e. to deliver drugs to Hong Kong for reward.
F F
G 8. Not being able to resist the temptation, the defendant agreed G
to it, so arrangement was made for him to come to Hong Kong so that he
H H
could deliver the drugs in this case to another and he would be paid $500.
I I
9. In mitigation, counsel for the defendant, Miss Karen Lau, said
J J
that the defendant had underestimated the consequences of his action, but
K K
having been arrested, he now realized the seriousness of the offences. He
L
is very worried about his family and in particular his pregnant wife and he L
feels guilty for not being able to be present at the moment of his son’s birth.
M M
N 10. On the positive side, the defendant is grateful for his family N
who has shown full support for him and even encourages him to become a
O O
better person, counsel said. All that he wants now is to return to the
P Mainland as soon as possible and to compensate his family and shoulder P
the responsibility of a father, a husband and a son by taking care of his
Q Q
family.
R R
11. There are three types of drugs involved in the instant case,
S S
but given the small quantity of the other two types compared to Ecstasy,
T i.e. nimetazepam and para-methoxymethamphetamine, I would simply T
focus on Ecstasy when it comes to sentencing.
U U
V V
- 4 -
A A
B B
C 12. The guidelines for trafficking in Ecstasy are trafficking C
between 10g and 50g, 4 to 6 years. I would take 4 ½ years as the starting
D D
point for the amount (21.66g), and reduce it to 3 years for his timely plea.
E E
13. Insofar as the illegal remaining charge is concerned, unless
F F
there are humanitarian grounds, the guidelines are 15 months’
G imprisonment after a plea of guilty, so the defendant is sentenced to 15 G
months for charge 1.
H H
I 14. Faced with two charges, Miss Lau asked this court to take into I
account the totality principle and adopt a partially consecutive sentence
J J
approach.
K K
L 15. The Appellate Courts have repeatedly said, “If a defendant, L
having entered and remained in Hong Kong illegally, commits another
M M
offence, the sentence for the unlawful remaining charge should run
N consecutively to the sentence for the other offence. The offences are N
separate and distinct.” (See Tong Fuk Sing [1999] 3 HKC 332)
O O
P 16. The higher court in Tong’s case reiterated that “Where Court P
of Appeal has laid down guidance for sentence, it is not sufficient for
Q Q
sentencing judge merely to pay lip service to it before departing from it -
R sound reasons for such departure should be given.” And I find no good R
reasons for so doing in the instant case.
S S
T T
U U
V V
- 5 -
A A
B B
17. For the above reasons, I order that the terms of charges 1 and
C 2 be run consecutively to each other, the total term is one of 4 years and 3 C
months.
D D
E E
F F
G ( Sham ) G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 777/2019
C [2019] HKDC 1597 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 777 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I LIN Chaoyang I
-----------------------------
J J
Before: HH Judge Sham
K K
Date: 26 November 2019
L Present: Mr Brian Chan, Counsel on fiat, for HKSAR L
Ms Karen Lau instructed by Messrs. Louis K.Y.Pau & Co. for
M M
the defendant.
N N
Offence: [1] Remaining in Hong Kong without the authority of the
O
Director of Immigration after having landed unlawfully in O
Hong Kong (在香港非法入境後未得入境事務處處長授權
P P
而留在香港)
Q [2] Trafficking in a dangerous drugs (販運危險藥物) Q
R R
--------------------------------------
S S
REASONS FOR SENTENCE
T
-------------------------------------- T
U U
V V
- 2 -
A A
B B
1. The defendant, an illegal immigrant from the Mainland,
C admitted to drug trafficking – 174.41g of a powder containing 2.89g of C
nimetazepam, 0.86g of para-methoxymethamphetamine and 21.66g of 3,4-
D D
methylenedioxymethamphetamine (commonly known as Ecstasy).
E E
2. On the night of 17 April 2019, customs officers stopped the
F F
defendant on the footbridge at Tin Wan Praya Road, Aberdeen and
G discovered the drugs in this case, which were put in 152 plastic packets, in G
a paper bag he was carrying.
H H
I 3. The street value of the drugs in question is estimated to be I
between $35,776 and $46,696.
J J
K 4. The defendant told the customs officers that initially he K
planned to come to Hong Kong to work to earn some money, but his
L L
application for a two-way permit was rejected, so he chose to sneak in by
M sea through a snakehead about a week before. M
N N
5. Subsequently, the defendant was charged with two counts of
O O
offence to which he pleaded guilty, namely:
P P
Charge 1: - Unlawful remaining1;
Q Q
Charge 2: - Drug trafficking2.
R R
6. The defendant (28), a married man with two children - a son
S S
(5 months only) and a daughter (3), is a person of clean record. His father
T T
1
Contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115
2
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance 134
U U
V V
- 3 -
A A
B B
(61), a cook, is running a food stall in the Mainland and the defendant is
C helping in his father’s business. C
D D
7. The court heard that whilst working at his father’s stall, the
E defendant came across a customer who suggested to him to come to work E
in Hong Kong for big money, i.e. to deliver drugs to Hong Kong for reward.
F F
G 8. Not being able to resist the temptation, the defendant agreed G
to it, so arrangement was made for him to come to Hong Kong so that he
H H
could deliver the drugs in this case to another and he would be paid $500.
I I
9. In mitigation, counsel for the defendant, Miss Karen Lau, said
J J
that the defendant had underestimated the consequences of his action, but
K K
having been arrested, he now realized the seriousness of the offences. He
L
is very worried about his family and in particular his pregnant wife and he L
feels guilty for not being able to be present at the moment of his son’s birth.
M M
N 10. On the positive side, the defendant is grateful for his family N
who has shown full support for him and even encourages him to become a
O O
better person, counsel said. All that he wants now is to return to the
P Mainland as soon as possible and to compensate his family and shoulder P
the responsibility of a father, a husband and a son by taking care of his
Q Q
family.
R R
11. There are three types of drugs involved in the instant case,
S S
but given the small quantity of the other two types compared to Ecstasy,
T i.e. nimetazepam and para-methoxymethamphetamine, I would simply T
focus on Ecstasy when it comes to sentencing.
U U
V V
- 4 -
A A
B B
C 12. The guidelines for trafficking in Ecstasy are trafficking C
between 10g and 50g, 4 to 6 years. I would take 4 ½ years as the starting
D D
point for the amount (21.66g), and reduce it to 3 years for his timely plea.
E E
13. Insofar as the illegal remaining charge is concerned, unless
F F
there are humanitarian grounds, the guidelines are 15 months’
G imprisonment after a plea of guilty, so the defendant is sentenced to 15 G
months for charge 1.
H H
I 14. Faced with two charges, Miss Lau asked this court to take into I
account the totality principle and adopt a partially consecutive sentence
J J
approach.
K K
L 15. The Appellate Courts have repeatedly said, “If a defendant, L
having entered and remained in Hong Kong illegally, commits another
M M
offence, the sentence for the unlawful remaining charge should run
N consecutively to the sentence for the other offence. The offences are N
separate and distinct.” (See Tong Fuk Sing [1999] 3 HKC 332)
O O
P 16. The higher court in Tong’s case reiterated that “Where Court P
of Appeal has laid down guidance for sentence, it is not sufficient for
Q Q
sentencing judge merely to pay lip service to it before departing from it -
R sound reasons for such departure should be given.” And I find no good R
reasons for so doing in the instant case.
S S
T T
U U
V V
- 5 -
A A
B B
17. For the above reasons, I order that the terms of charges 1 and
C 2 be run consecutively to each other, the total term is one of 4 years and 3 C
months.
D D
E E
F F
G ( Sham ) G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V