HKSAR v. LAU WAI KIT

HCCC 421/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 421 OF 2016

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

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COURT: Some time before 7 pm on 6 August 2014, a security guard on patrol in Yung Yat House, Yat Tung Estate, in Tung Chung, upon reaching the fire or smoke door opposite Room 2801 on the 28^th Floor, saw four transparent packets on the floor. First appearance suggested that these may be dangerous drugs. The security officer alerted her superior, and they, together with another member of the security team, then discovered a large coloured shoebox protruding from beneath a beam below the ceiling. They chose, very wisely, not to disturb the scene as it was and immediately alerted the police.

The police in due course arrived and it was determined that the shoebox contained a further six transparent packets of the same substance as those that were on the floor. It was obvious that the four on the floor had fallen from the shoebox. All of the ten transparent packets were replaced in the shoebox which was itself reinstated on the beam below the ceiling. The area was put under constant surveillance by various teams of police officers.

At around 8.36 am on 7 August 2014, those police officers on surveillance first heard and then observed the person walking down the staircase to the 28^th Floor. That person then made his way to the vicinity of where the suspected dangerous drugs were concealed inside the shoebox. That person was the defendant.

The police officers observed the defendant raise both his hands into the air, jumped and grabbed hold of the shoebox containing the ten packets of suspected dangerous drugs. He was immediately apprehended and asked what it was that he was doing there. In reply, he indicated he had gone to the location to smoke a cigarette. He declined to answer any further questions about the shoebox and its contents.

The shoebox and its contents were seized by the police and subsequently the government chemist determined that the contents of the ten clear plastic bags was 269 grammes of a powder containing 202 grammes of ketamine.

It is an admitted fact that the street value of those drugs was estimated to be in excess of $32,000.

The defendant was charged with trafficking in dangerous drugs and was in due course committed to this court for trial. He pleaded not guilty and on 25 September 2015, he was convicted after trial and sentenced to be imprisoned for a period of 7 years and 6 months. He timeously lodged a notice of application for leave to appeal his conviction.

On 4 October 2016, the Court of Appeal allowed his appeal and quashed his conviction. They also ordered that he be retried on a fresh indictment. That retrial was fixed before me to commence on this day with six days allowed.

At a pre-trial review on 16 November of this year, the defendant indicated that he would plead guilty to the indictment. The trial dates were thus vacated and the plea and sentence fixed for hearing today. And today, before me, he has maintained that plea of guilty and admitted a Summary of Facts in support of the prosecution case.

There is very little in mitigation submitted on behalf of the defendant other than the clear and obvious expression of remorse by his plea of guilty and an indication that he wished, for the future, to remove all association with his peers that led him into this situation. He has provided some information to the police as of late last week which the prosecution, on initial observation, have indicated is of little assistance to them. Nevertheless, were it to be the case that it was significant, then it is accepted that he would be able to advance those matters before another court on another occasion.

The defendant is 23 years of age. He lives, or had lived previously with his parents. He has a very minor conviction for a gambling offence but, otherwise, has not come before the courts.

It is accepted by Mr Poon on his behalf that the authorities are clear as to the appropriate starting point for sentence. At the defendant’s trial, the judge took a starting point for sentence of 7½ years. There was no mitigating factors in the trial and of course that sentence was therefore imposed upon him.

The relevant sentencing guidelines for trafficking in the drug ketamine are set out in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323. Having considered that authority, I am satisfied that the starting point adopted by the trial judge was within the parameters therein indicated and I will adopt the same starting point.

It is accepted that if a defendant pleads guilty at a retrial, he cannot expect to receive the same discount from the starting point for sentence had he pleaded guilty at the outset of the proceedings or at the start of his trial. That plea of guilty will not attract the same reduction or same recognition as would a plea tendered at the outset of proceedings.

Having considered the authorities, I am satisfied that the appropriate discount from that starting point would be one of 25 per cent. Whilst there are no hard and fast rules or binding decisions of the Court of Appeal to that effect, having considered the authorities, I am satisfied that it is reasonable, in the circumstance of this case, to consider applying that discount.

I should add, for the sake of completeness, that I have considered the observations of the Court of Appeal in HKSAR v Ngo Van Nam, reported at CACC 327/2015, in which it revisited and restated the principles and guidelines for discounts for pleas of guilty. The judgment of the court in that case is silent upon the approach to be taken for discounts on a retrial. However, in keeping with the general tenor and spirit of the judgment, it would appear to me to be entirely appropriate for the 25 per cent discount to be applied to this defendant.

Therefore, I come to the sentence. Starting with a 7½ year sentence, the defendant is entitled to a full 25 per cent discount for his plea of guilty at the retrial. There has been nothing advanced on his behalf by his counsel which would enable me to increase that discount.

That being the case, from a starting point of 7½ years, the appropriate sentence to be imposed is one of 5 years and 7 months’ imprisonment. That will be the sentence I will impose.