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HCCC12/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 12 OF 2009
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HKSAR |
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v. |
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Lau Hon-wo (A1) |
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Chong Fai-wing (A2) |
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Before: Hon Saw, J
Date: 11 June 2009 at 12.05 pm
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Present:
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Ms Jasmine Ching, SPP of the Department of Justice, for HKSAR
Mr Michael Delaney, instructed by Wong, Fung & Co., for the 1st Accused
Mr Bruce Lau, instructed by Francis Kong & Co., for the 2nd Accused
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Offence:
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(1) Trafficking in dangerous drugs(販運危險藥物)
(2) Trafficking in a dangerous drug (販運危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: In this matter, the 1st defendant was initially charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The 1st count alleged that, on 21 July 2008, outside Flat C on the 5th floor of Peace Garden, which is situated at No. 2 Peace Avenue, Kowloon, he unlawfully trafficked in a quantity of dangerous drugs. The particulars of the drugs were as follows: 56.34 grammes of a solid containing 38.01 grammes of cocaine, 16.48 grammes of a powder containing 14.06 grammes of ketamine, and 40 tablets containing 0.34 of a gramme of nimetazepam.
He has pleaded guilty to this charge and admitted a Summary of Facts which established that he had committed the offence.
He was also charged, together with the 2nd defendant on the indictment, with Count 2. The particulars of Count 2 on the indictment allege that the 1st defendant and the 2nd defendant, at the same address referred to in Count 1, that is, Peace Avenue in Kowloon, they together unlawfully trafficked in a dangerous drug. The particulars of the drug in Count 2 were 301.84 grammes of a powder containing 171.84 grammes of cocaine.
The 1st defendant pleaded not guilty to this count. The prosecution, quite properly in my opinion, elected to lead no evidence in support of that count and I dismissed it with respect to the 1st defendant.
The 2nd defendant, for his part, pleaded guilty to Count 2 and admitted a Summary of Facts which established that he had committed this offence.
It is then necessary for me to sentence each of the respective defendants for the offence for which he has been convicted on his own plea.
The Summary of Facts, which was read by the prosecutor, Miss Ching, and admitted by both of the defendants, revealed the following. On 21 July 2008, a team of police officers were in the vicinity of Flat C on the 5th floor of Peace Garden, at No. 2 Peace Avenue, in Kowloon. At about 10 pm, a man, as it transpired the 1st defendant, was seen to leave Flat C, carrying a plastic bag. He was detained by the police officers and a search through the plastic bag revealed the drugs which are particularised in Count 1 on the indictment. When questioned by the police officers, he told them that Ah Wing had asked him to put the bag of things in the rubbish bin outside.
It is accepted that the value of the drugs contained in the plastic bag was in the vicinity of $53,731.
Other police officers entered the flat that the defendant had emerged from. Inside, they found the 2nd defendant and another male. A search of these premises revealed that, in the middle drawer of a three-tier chest of drawers, in the sitting room, was a cache of drugs. There were some 11 bags of cocaine, an electronic scale, a sieve, a spoon and a stick. The latter items had traces of cocaine on them.
The cocaine itself was that which is more particularly described in Count 2 on the indictment and it is accepted was valued at $265,000.
D2 told the police that the cache of drugs that they had found had nothing to do with the 1st defendant, nor the other male who was in the flat with him. He told the police that he had taken the drugs to the flat himself earlier that day. The 2nd defendant’s fingerprints were subsequently established to be on the outer surface of the plastic box which contained the cocaine.
Each of the defendants has admitted that he was, on that day, trafficking in the drugs.
Mr Delaney, on behalf of the 1st defendant, has advised me of something of his background and circumstances. He is a married man, has been in full-time employment for the majority of his working life. He and his wife together have little need of additional funding and they are not persons who were, at the time of the commission of this offence, in any way in debt.
He is, as Mr Delaney points out, a man of clear record and it is submitted on his behalf that this fall from grace to engage in trafficking in dangerous drugs was a spur-of-the-moment decision on his part, that he was naïve and that he did it in direct consequence of a request made of him by the 2nd defendant.
On behalf of the 2nd defendant, Mr Lau tells me that he is aged 41 years of age and that the reason that he became involved in the trafficking in this quantity of cocaine was directly referable to the fact that, some three months prior to the offence, he had become unemployed. As a consequence of that, he was unable to provide the support for his family that was required, so he resorted to trafficking in dangerous drugs, essentially, for very little reward.
In addition to his pleading guilty, which is a clear reflection of his remorse, Mr Lau points out to me that, in the course of his detention at Lai Chi Kok Reception Centre, he had attempted to commit suicide and, as a consequence, was transferred to the Siu Lam Psychiatric Centre for a period of time.
I will deal with the sentence of the 1st defendant first. The appropriate sentencing guidelines for a person convicted of trafficking in cocaine are the same as those which are laid down for the offence of trafficking in heroin hydrochloride. For this quantity of cocaine, namely, 38.01 grammes, a starting point for sentence after trial would be 7 years.
As to the ketamine, on 6 June 2008, the Court of Appeal in Secretary for Justice v Hii Siew Cheng, which is now reported at [2009] 1 HKLRD at 1, laid down guidelines for sentencing for those convicted of trafficking in ketamine. This offence was committed on 28 July and therefore I must have regard to those new guidelines when I determine the appropriate sentence.
For this quantity of ketamine, that is, 14.06 grammes, standing alone without any other drugs involved, a starting point for sentence after trial of 4 years would be appropriate. There are no specific guidelines provided by the Court of Appeal or any other judge in this court for sentencing for nimetazepam.
Of the drugs in Count 1, it is apparent that the cocaine and ketamine are the most serious of those. It is equally apparent from the guideline cases that cocaine is regarded as the more serious of those two. Sentencing where there are two or more different types of drugs being trafficked can pose problems.
Having considered the most recent observations of the Court of Appeal, I am satisfied that, of the two alternatives which have been described as the individual or combined approaches for sentencing in this situation, the combined approach is the more appropriate in this case. I am, in particular, referring to the judgment of the Court of Appeal in HKSAR v Yip Wai Yin & Another which is reported at [2004] 3 HKC at 367. In the headnote to Yip Wai Yin, it suggests that:
“The combined approach involved the calculation of the applicable sentence for the more or most serious drug in terms of potency, then to take into account significant quantities of other, less serious drugs.”
By this course, the sentencer can take a global view of what is an appropriate starting point for sentence. Leaving aside for the moment the 40 tablets of nimetazepam, I consider that a proper starting point for sentence based on the quantities of cocaine and ketamine is one of 7 years and 6 months after trial.
In coming to that conclusion, I have considered the relevant starting points for the quantities of each of the drugs as I have earlier indicated. Were all of the drugs cocaine, that is a total quantity in excess of 52 grammes of cocaine, a starting point of 8 years after trial would be appropriate. That starting point in the present case would be too high. Nevertheless, the starting point for sentence must reflect the fact that there were drugs other than cocaine in this parcel.
I do not intend to add to that starting point by reason of the quantity of nimetazepam. That is not because trafficking in that drug is not to be regarded as a serious offence but by reason only of the relatively small quantity.
I have taken into account all of the matters that have been very properly advanced on behalf of the defendant by Mr Delaney. Nevertheless, I do not consider it would be appropriate to in any way adjust the starting point for sentence from those other than that which is recommended by the relevant authorities.
I have considered the matters that have been advanced as to whether or not it is appropriate to increase, on the 1st defendant’s behalf, the discount from that starting point. I am not persuaded that anything in the circumstances of the commission of this offence, nor the defendant’s own circumstances, would justify me departing from the usual one-third discount.
Allowing for a full one-third discount from the starting point of 7½ years results in a sentence of 5 years, and this is the sentence that is imposed on the 1st defendant on Count 1.
In the case of the 2nd defendant, the appropriate starting point for sentence, after trial, for this quantity of cocaine is 11 years. This defendant is entitled to a full one-third discount from that starting point to reflect his plea of guilty.
Having considered all the matters advanced on his behalf, I am not persuaded that it is appropriate to depart from that discount and, in which case, the appropriate sentence to be imposed is one of 7 years and 4 months’ imprisonment.
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