HKSAR v. LAU PO YAN

HCCC 169/2019

[2019] HKCFI 2911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 169 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This case concerns a conspiracy by Lau Po-yan, Tsui Nai‑ka, Garrick and an unknown person to traffic in cocaine. The defendant, Lau Po-yan, pleaded guilty before me to one count of conspiracy to traffic in a dangerous drug. The offence period was between 10 July 2017 and 6 August 2017. A total of 537 grammes of a solid containing 425 grammes of cocaine was imported into Hong Kong from Lima, Peru.

Tsui Nai-ka, Garrick (hereinafter referred to as “Tsui”) is the defendant in HCCC 170/2019. He pleaded guilty before me to one count of conspiracy to traffic in a dangerous drug.

The particulars of offence of HCCC 169/2019 and HCCC 170/2019 are the same. An innocent agent was used in the scheme.

The Facts

At about 1050 hours on 5 August 2017, Ms Chan Choi-wa (“Chan”) was intercepted at Customs arrival hall of the Hong Kong International Airport upon arrival from Lima, Peru via Amsterdam. Upon check by customs officers, various items of clothing were found inside a green suitcase that Chan was carrying which included eight jackets, three skirts, six pairs of shorts, three pairs of trousers, five pairs of shoes and 11 packets of sauce. An examination of a grey padded jacket revealed that it had been re-seamed. When cut opened, a white cloth was found concealed inside. The white cloth was tested positive for cocaine. The rest of the clothes and shoes were then cut open and all were found concealed with a white cloth inside. A total of 93 pieces of cloth were found containing 537 grammes of a solid containing 425 grammes of cocaine.

Chan was also found, inter alia, in possession of two sets of electronic flight tickets, one in her name and the other in the name of a female, Lie Fung-fong. She was found also to have three mobile phones.

On investigation with Chan, she revealed, inter alia, the following:

(a) In early July 2017, Chan’s friend, female Ng Yuen‑ching (“Ng”), told her that a friend was looking for escorts to go on a trip to South Africa for seven days for a wage of HK$10,000. Chan told Ng she was interested in the job.

(b) A few days later, a man named Garrick (later confirmed to be Tsui Nai-ka Garrick, hereinafter referred to as Tsui) contacted Chan from a telephone number 98481121. Chan was told that the work entailed escorting bosses in South Africa, carrying baggage and doing odd jobs and there would be other girls going on the same trip. Chan accepted the job.

(c) Chan subsequently met Tsui in Lam Tin MTR Station and provided photocopies of her identity card, passport and proof of address to him to purchase her air tickets and hotel room for the trip.

(d) At about 10 am on 13 July 2017, Chan met Tsui at the airport as arranged. Tsui accompanied Chan to the airline check-in counter. At the airline counter, an airline staff told Chan that her trip from 13 to 17 July 2017 was too short and she would not be given a boarding pass without a reasonable explanation. At this juncture, Tsui told the airline staff that Chan was attending a relative’s wedding ceremony. When the airline staff requested the address of the relative, Tsui took Chan to Café de Coral where he went online with his mobile phone to search for an address. Tsui then copied the address and gave it back to the airline staff who then issued Chan’s boarding pass to her.

(e) Tsui gave Chan her boarding pass, hotel room reservation number, two mobile phones, one in black and one in white, the other female’s electronic air ticket and $3,000 pocket money for the trip. Tsui told Chan that the black mobile phone was for the boss’ helpers to contact her, whilst the white mobile phone was for the other female, Lie. Tsui asked Chan to pretend to be Lie and she would be paid extra on her return to Hong Kong.

(f) Tsui instructed Chan to report to him on arrival at each location, using her own telephone number 51142017 and not to let anyone know that she was playing Lie’s role.

(g) When Chan was in Peru, she was contacted via WhatsApp on the black phone by persons claiming to be the boss’ assistants and who all spoke in Cantonese. Chan was told by the boss’ assistant that the luggage was not yet ready and she was told to extend her stay and get a new air ticket.

(h) Whilst in Peru, Chan had received $20,000 transmitted to her via Western Union by the boss’ assistants and she had also received $3,000 remitted by Tsui through Western Union.

(i) Chan had expressed her concern via WhatsApp to Ng about carrying luggage. Ng then sent an image of Tsui’s Hong Kong identity card to Chan and told her to point out Tsui if Chan got into trouble.

(j) Around 27 to 28 July 2017, Chan contacted Tsui, asking to return to Hong Kong. Tsui told Chan that he would not buy her flight ticket if she did not carry the luggage and that she would be in trouble as he had her residential address.

(k) On 2 August 2017, a green suitcase was delivered to Chan at her hotel. Chan took a photo of the green suitcase and sent the photo to Tsui and the boss’ assistant as instructed.

(l) On 3 August 2017, Chan took a flight from Peru to Hong Kong via Amsterdam. When Chan was in transit in Amsterdam, Tsui instructed Chan to delete all WhatsApp conversation records between Tsui and herself and to send a screen capture of the WhatsApp page as proof that she had cleared all chat history between them. Tsui also instructed Chan to reset the two mobile phones that he had given her and to clear all records in those mobile phones before arrival to Hong Kong. Tsui told Chan that she was to hand the suitcase to him on arrival in Hong Kong.

Arrest

Tsui was arrested for conspiracy to traffic in a dangerous drug on 7 August 2017 at the podium of his home at Wong Chuk Hang. Under caution, Tsui said, “I have dragged Choi-wa into it.” Tsui’s home was searched. A mobile phone with a subscriber number 93996701(93886071?) was seized.

In an identification parade conducted on 4 June 2018, Chan identified Tsui as Garrick, the person who instructed her to bring the green suitcase back from Peru to Hong Kong.

At around 2110 hours on 25 April 2018, DPC 3998 arrested the defendant at her home in Tuen Mun. On confirmation of the defendant’s identity, DPC 3998 asked the defendant if she had other names. The defendant replied that her English name was Venus and her nickname was V Chai. Under arrest and caution for conspiracy to traffic in dangerous drugs, the defendant stated, “The case was that a friend asked me to find somebody to carry documents to Hong Kong from Peru. So I asked Tsui Nai-ka to help find someone. But, in the interim, I learned that it was cocaine. I let Tsui Nai-ka know about that. But he told me that he needed money and insisted on carrying on.”

In an identification parade conducted on 4 September 2019, Tsui identified the defendant as the female Venus, nicknamed V Chai, who is the person he had worked with between 13 July and 5 August 2017 to control Chan to travel to Peru to bring back a suitcase containing cocaine.

Chan was released from custody in June 2018.

Conspiracy

Tsui became acquainted with the defendant in early 2017 through a former colleague. Tsui had met the defendant a few times at social occasions. The defendant is known to Tsui as Venus or V Chai. In about May or June 2017, the defendant asked Tsui if he was interested in earning some quick money. Tsui indicated that he was interested. The defendant told Tsui that she needed help in an “escort tour” and asked Tsui to help find at least two suitable candidates and Tsui would be paid $10,000 per girl provided. Through Tsui’s ex-girlfriend Ng, Tsui found Chan and Lie. About three weeks later, Tsui met the defendant’s representative in Mongkok where he was given cash $3,000 and two mobile phones, one in black and one in white with prepaid SIM cards and two electronic tickets of the return flights to Peru bearing the names of Chan and Lie. Tsui arranged to meet Chan and Lie at around 8 am on 13 July at the Hong Kong International Airport.

On 13 July 2017, Tsui met Chan at the airport. Lie had telephoned Tsui to say she would not be making the trip. Tsui called the defendant who instructed Tsui to give both phones to Chan, and Chan would need to pretend to be Lie when answering the phone. This is to give the impression that there are two persons on the trip so that the extra payment due for the second female can be split equally between Tsui and the defendant. Tsui handed the two phones and HK$3,000 to Chan before she boarded the plane.

On or about 14 July 2017, Tsui and the defendant met in a snooker hall in Tsim Sha Tsui where the defendant told Tsui that whilst in Peru, Chan would receive a piece of luggage containing cocaine, the exact quantity of which is unknown. The cocaine would be hidden inside clothing stored in the luggage. Tsui agreed to continue to participate in this transaction and the defendant had offered to give him $100,000 as compensation if he was arrested.

The defendant instructed Tsui to use his personal telephone number 98481121 to contact Chan on her personal phone number 51142017 via WhatsApp. The defendant also instructed Tsui to keep her informed and to delete WhatsApp messages between Tsui and herself and between Tsui and Chan every three to four days so as not to leave a trace.

As the drug was not ready in time, the defendant instructed Tsui via WhatsApp to ask Chan not to board the plane on the seventh day as originally scheduled as the drug was not ready in time. Tsui had remitted $3,000 to Chan while the defendant’s boss had also remitted $20,000 to Chan via Western Union as her expenses in Peru.

At around end of July 2017, the defendant informed Tsui via WhatsApp that the luggage was ready and had been delivered to Chan. The luggage only contained clothes and the drugs were stored inside the clothes. A return ticket had also been arranged for Chan. The defendant instructed Tsui to meet Chan on her arrival at the Hong Kong International Airport on 5 August 2017. The defendant also informed Tsui that there will(would?) be someone at the airport on the day of Chan’s arrival. Tsui was to collect the suitcase and to pass it to the defendant’s colleague.

On 5 August 2017, Tsui did not see Chan at the airport and suspected Chan had been arrested. Tsui informed the defendant who said that if matter was exposed in the press, both Chan and Tsui would get a settling fee. The defendant instructed Tsui to delete all communication records, including WhatsApp messages between himself and Chan and himself and the defendant.

Government Certificate

On 10 July 2018, a government chemist certified that the 93 pieces of cloth contained 537 grammes of a solid containing 425 grammes of cocaine.

The street value of the drugs at the material time was $478,467.

CCTV Footage

CCTV footage of Café de Coral at Hong Kong International Airport between 1029 hours and 1056 hours on 13 July 2017 captured Tsui and Chan inside the restaurant. The footage showed Tsui using his mobile phone and writing something on a document, and giving a mobile phone to Chan.

Telephone and WhatsApp Records

Telephone subscriber checks revealed that at all material times, Chan and Tsui were the registered subscribers of telephone numbers 51142017 and 98481121 respectively. Call records show that there was telephone contact between Chan and Tsui on 5, 7, 12 and 13 July 2017 respectively.

An examination of the WhatsApp records of Tsui’s mobile phone revealed the following:

(a) At 2236 hours on 4 August 2017, Chan had sent Tsui a screen capture of WhatsApp chat page between herself and Tsui to show that she had deleted that all previous WhatsApp chat history between them;

(b) At 1111 hours on 5 August 2017, Tsui had instructed Chan on what to say on handover of the suitcase if she was asked about Lie; and

(c) At 1158 hours on 5 August 2017, Tsui had sent a message to Chan to ask if she had returned to Hong Kong.

At all material times, the defendant had communicated with Tsui using three telephone numbers: 64833124, 90941898 and 62914123. Tsui had used telephone numbers 98491121 and 93886071 to communicate with the defendant.

The contact list of Tsui’s mobile phone showed two telephone numbers 90941898 and 62914123 which were stored under the name “Venus” while another telephone number 64833124 was stored under the name “V Chai”.

WhatsApp records between Tsui (using telephone number 93886071) with the defendant (telephone number 64833124) revealed, inter alia, the following:

(a) On 5 August 2017, Tsui forwarded a screen capture telephone number of one of the boss’ assistants to the defendant.

(b) On 6 August 2017, V Chai and Tsui discussed the whereabouts of Chan and whether they should look for her at her home address. Tsui suggested to the defendant that they should not go to Chan’s home as they could be ambushed by the police.

At all material times, the defendant had conspired with Tsui and other persons unknown to unlawfully traffic in a dangerous drug as particularized in the charge by luring Chan to bring back a suitcase which the defendant and Tsui knew contained cocaine.

Antecedent Statement of the Defendant

The defendant is now aged 25, locally born. She received education up to high diploma level. She had worked in the past as warehouse assistant and beautician. At the time of her arrest, she worked as an insurance agent. She is single but is now 13 weeks pregnant with her first child. The father of the child and the family of the defendant would take care of the baby born while the defendant is serving her term. She resides with her parents and a younger sister in Tuen Mun.

Mitigation

Ms Yap submits in mitigation that the defendant was not the mastermind of the conspiracy. There was a real boss behind the scene. The role of the defendant only was that of the person who would pass on the messages of the boss to Tsui. She submits also that the defendant only became aware that the trip would involve trafficking in a dangerous drug on 14 July 2018. As both Tsui and the defendant wanted to earn quick money, they continued their participation in the conspiracy. Ms Yap suggests that given the quantity of cocaine involved, applying the tariff in R v Lau Tak Ming and Another [1990] 2 HKLR 370, the starting point would be around 15 years and 7 months.

She reckons that given the international element, the sentence should be enhanced. She suggests an enhancement of 10 months, citing HKSAR v Chung Ping Kun, CACC 85/2014. Ms Yap reckons also that the defendant did not plead guilty at the committal stage. Applying the revised practice of sentencing discount as laid down by the Court of Appeal in HKSAR v Ngo Van Nam, CACC 418/2014, after trial date had been fixed but before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25 per cent and 20 per cent from the starting point. She urges me to give the defendant 25 per cent discount for her guilty plea.

Consideration

This case concerned a conspiracy to traffic 425 grammes of cocaine into Hong Kong from Lima, Peru. When I sentenced Tsui for the same offence, I applied the tariff in R v Lau Tak Ming and AG v Rojas [1994] 1 HKC 342 and adopted an initial starting point of 15½ years’ imprisonment.

Whilst the defendant was not the mastermind of the conspiracy, she was more culpable than Tsui and that she was the one who instigated Tsui to look for people to traffic cocaine into Hong Kong. Whilst Tsui was the person who recruited and controlled Chan, the defendant was the one who was giving Tsui instructions throughout. A higher starting point of 16 years’ imprisonment is called for.

I find the presence of two aggravating features: one, the international factor given that the conspiracy was to traffic cocaine into Hong Kong from Lima, Peru; and, two, the use of an innocent agent. In HKSAR v Chung Ping Kun, the Court of Appeal stated that for trafficking in heroin, cocaine and ‘Ice’ where under 1,000 grammes:

“9. As a broad guideline for drugs of this kind below 1,000 grammes, we will suggest the level of enhancement as follows:

(1) Up to 250 grammes, 6 months;

(2) between 250 grammes and 500 grammes, 6 months to a year;

(3) between 500 and 1,000 grammes, 1 year to 2 years.”

In my judgment, an enhancement of 9 months is appropriate for the international factor in the present case.

An innocent agent, that is Chan, was used in the scheme. Chan was lured to bring back to Hong Kong a suitcase containing cocaine and she had no knowledge that she was helping others to traffic a large quantity of cocaine into Hong Kong. The use of an innocent agent like Chan would expose her to the danger of prosecution, and upon conviction, lengthy imprisonment. Chan was arrested and had been detained for 10 months until she was released in June 2018.

In my judgment, the use of an innocent agent in circumstances like the present case calls for an enhancement of 1½ years.

The aforesaid two aggravating factors bring the starting point up to 18 years and 3 months’ imprisonment, that is 219 months. The defendant indicated she would plead guilty to the charge after the case management hearing on 6 September 2019. She is entitled only to a 25 per cent reduction for her guilty plea. The 25 per cent reduction has already built into it the clear record of the defendant.

For the reasons given, I sentence the defendant to 13 years and 8 months’ imprisonment.