HKSAR v. LAI KA YIN AND ANOTHER

HCCC 385/2019

[2020] HKCFI 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 385 OF 2019

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

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COURT: Lai Ka-yin, you have today pleaded guilty under Count...

(Discussion re interpretation)

...under Count 1 of the indictment to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 in that you trafficked in 15.42 grammes of cocaine. The Summary of Facts which forms the basis of that plea was read out to you and you have agreed them, although there has been some dispute as to how they should be interpreted.

In simple terms, you were adjacent to House 23, Fairview Park, when the police sought to execute a search warrant after they had arrested the 2nd defendant. On seeing the police, you attempted to flee but were caught and a search recovered the cocaine which is the subject of Count 1. The cocaine had been hidden in your underwear. You also had several small amounts of foreign currency upon you and $15,500 in Hong Kong dollars cash. You have suggested through Ms Lai that this money was your salary. Given that it was the middle of the month and that you had the responsibility of supporting your family, I do not accept that was the case. I have given you the opportunity to give evidence on your own behalf about the issues raised today and that opportunity has not been taken up.

The street value of the dangerous drugs found upon you was between HK$28,454 and HK$39,138, depending upon whether it was cocaine in powder form or crack cocaine. You say you were to get between four to five thousand dollars’ reward for simply taking the drugs to someone else. I do not accept that you were a simple courier between the manufacturer and the supplier and again, you did not avail yourself of the opportunity to give evidence about that issue.

You were not found to have any trace of dangerous drugs in your system when later tested and you have not suggested that you are an abuser of drugs.

You are 32 years of age and of previous good character. At the time of your arrest, you were working as a warehouseman and earning between fifteen and twenty thousand Hong Kong dollars per month. You are divorced but have a girlfriend and a small child. You also support your parents.

I have read your letter and the other letters provided to me. Ms Lai submits that you are remorseful and that you have been lured into this offending by others, but I have been given no proper explanation as to why this happened, given that you do not abuse drugs yourself and are of previous good character. There has been no suggestion that you were in financial difficulty. If I were to believe the version of events submitted by Ms Lai, you were financially comfortable if you can carry around $15,500 in your wallet in the middle of the month.

It actually does not make any sense that you would start to commit offences whilst in your 30s. Nor do I have any evidence of your actual role in this matter. The papers suggest that you were the one who took the lead and that you recruited the 2nd defendant. I mentioned this for you to answer if you wished to do so. That evidence would not be admissible in trial but it is a suggestion made by the 2nd defendant and you should have the opportunity to answer it. Again, you decided not to do so. I have simply the submissions from counsel that the 2nd defendant is not telling the truth and that a third party recruited you to carry drugs, and I am sentencing you on the basis that you have put forward, not upon the basis that has been put forward by the 2nd defendant.

For the trafficking of 15.4 grammes of cocaine, in accordance with the guidelines set out in R v Lau Tak Ming, the guideline starting point after trial of between 10 to 50 grammes of cocaine is 5 to 8 years. I consider the appropriate starting point on these facts for 15.4 grammes to be 5 years and 6 months’ imprisonment. None of the mitigation advanced can reduce this starting point but you will, of course, receive a full one-third discount for your early indication of plea of guilty which is to your credit, and therefore you will go to prison for 3 years and 8 months.

Thank you very much, Mr Lai. If you would like to sit down, please, and if Mr Ip would like to stand up?

Mr Ip, you have today pleaded guilty under Count 2 on the indictment to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 in that you trafficked in 257 grammes of cocaine. You have also pleaded guilty under Count 3 of the indictment to possession of the 1.16 grammes of cocaine, contrary to section 8(1)(a) and (2) of the DDO, Cap 134. The Summary of Facts which forms the basis of that plea was read out to you and you have agreed them.

In simple terms, you were observed in possession of a garbage bag outside of House 40, Fairview Park, Yuen Long, which you deposited. That bag was found to contain two smaller plastic bags which contained 0.79 grammes and 0.37 grammes of cocaine respectively. They are the dangerous drugs to be considered under Count 3.

A search of a motor vehicle to which you held the keys recovered a notebook and a further 22 plastic bags with a total of 257 grammes of cocaine, the subject matter of Count 2. $8,010 in cash was also recovered from the car. On arrest and under caution, you stated that you had helped the 1st defendant, Lai Ka-yin, by placing the dangerous drugs in the car. You told the police that the 1st defendant had manufactured the dangerous drugs. This is something that the 1st defendant denies and he points out that this occurred at your home address and not his.

The estimated street value of the cocaine found within the car was between HK$479,586 and HK$659,682. That is a lot of money.

You were not found to have any trace of dangerous drugs in your system when later tested. However, Ms Ko has submitted upon your instructions that you are in fact an abuser of dangerous drugs and have been for many years and that some 60 grammes would have been retained by you to consume at a rate of 2 grammes per hit. Given the fact that your drug test proved negative, I gave you the opportunity to give evidence upon your self-consumption and you declined despite the fact that I informed you that I did not believe your claim and that you would not be penalized by choosing to testify even if disbelieved.

You are 34 years of age and married. You have no similar convictions. I have been told that you were a trader in red wine and a cross-border driver at the time of your arrest. I have also been told that your father, sadly, was diagnosed with lung cancer in 2017 and that you took on the burden of funding his medical expenses at a time when you were the main breadwinner of the family. Those expenses were substantial and your earnings were nowhere near enough to meet them. It was under those circumstances that you say you agreed to assist the 1st defendant in the distribution of dangerous drugs which you say he had manufactured. That was an error of judgment for which you will pay a heavy price.

For the trafficking of 257 grammes of cocaine, in accordance with the guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370, the guideline starting point after trial for between 200 and 400 grammes of cocaine is 12 to 15 years. The appropriate starting point is therefore 12 years and 9 months’ imprisonment. You are of positive good character and you carried out this offending when under financial pressure.

I have read all of the documents provided by Ms Ko. Your father is not the only person you have supported from your limited resources and you clearly have a kind heart. I believe this offending was out of character and that your remorse is genuine. As a result, I am prepared to reduce the starting point for sentence by 9 months. You are of course entitled to a full one-third discount for your plea of guilty at an early stage. On Count 2, you will therefore go to prison for 8 years.

On Count 3 for possession of the 1.16 grammes of cocaine, the guideline starting point after trial is usually between 12 and 18 months for possession. I consider a starting point of 6 months to be appropriate as it would appear that these drugs were the residue of your joint manufacturing enterprise and would make no difference to the sentence I would have passed if it had been added to the drugs relied upon for Count 2.

You are entitled again to a one-third discount for your early plea, making a sentence of 4 months under Count 3 which will be served wholly concurrently with Count 2, and you will therefore go to prison for a period of 8 years.