HKSAR v. CHOY KA WING

HCCC 164 & 165/2018

(Heard together)

[2019] HKCFI 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 164 & 165 OF 2018

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

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COURT: There are two case numbers in in these proceedings, but both defendants from both cases have been jointly charged with one offence, that is trafficking in a dangerous drug; namely 46.8 grammes of a solid containing 38.7 grammes of cocaine.

They were arrested together on 3 November 2017 outside Fu Kwai House, Tai Wo Hau Estate, Kwai Chung. For the purposes of these proceedings, I shall refer to Mr Li Kwok‑him as the 1st defendant and Mr Choy Ka-wing as the 2nd defendant. In admitting this offence, the defendants have agreed separate Summary of Facts which set out the circumstances of their arrest and commission of this offence.

At about 2.30 am on 3rd November, both defendants were seen standing together and looking around nervously. They were seen talking and were preoccupied with their mobile phones. Those police officers who saw them decided to investigate. The defendants were stopped and searched. In the 1st defendant’s front right pocket of his trousers, the police found a box of cigarettes. Inside that box, there were two transparent resealable plastic bags containing the cocaine of the charge. He was arrested and under caution, he admitted that he was there with the 2nd defendant and the 2nd defendant had asked him to carry the cocaine. The 2nd defendant was responsible for receiving payments for the drugs and he himself would be paid $200 by that defendant as a reward. He asked the police to give him a chance. The police also found $800 cash and two mobile phones on him.

The 1st defendant’s home was subsequently searched and no other illegal substances or apparatus was found. Later, a video-recorded interview was conducted with him in the presence of his elder brother. Under caution, he admitted that he met the 2nd defendant, Choy Ka-wing, several years ago. And a month before the date of their arrest, a man called “Chan Jai” asked them both if they wanted to earn some quick money.

On the night of 2 November, the 1st defendant says the 2nd defendant called him. He told him he had to go and collect drugs; they arranged to meet at around 11 pm. When he arrived at the meeting, Chan Jai passed his cigarette box to the 2nd defendant, who then passed it to him. They were then told to take a taxi together to Tai Wo Hau Estate.

In the taxi, the 1st defendant opened the cigarette box and saw the two packets of drugs inside. He recognised the drugs to be cocaine. He was told to put the packet in his trousers’ pocket and when they arrived at destination, they were to await a phone call from a client. He says the 2nd defendant was responsible for collecting the money from the buyer and he was responsible for receiving the phone calls and passing the drugs over. Those were the instructions of Chan Jai. They were both intercepted and arrested by the police before they had met any clients or passed over any drugs.

The 2nd defendant was also arrested by the police. Under caution, he replied that he and the 1st defendant were delivering the drugs to a customer for a profit of $500 only. He, too, asked for chance from the police. His home was searched as well with no other incriminating items found.

The estimated market price of the cocaine of this charge was $43,009.

The 1st defendant

The 1st defendant is 18 years old and was 17 at the time of the offence. He has a clear record in Hong Kong. When he was arrested, he was still a student studying in Form 5 in a school in Tin Shui Wai. He is single and lives with his older brother and his wife in Sheung Shui. Both his parents are in a nursing home.

I have read letters from his school’s social worker and four of the defendant’s teachers. All teachers asked for leniency on his behalf. They explained that he comes from a sad and impoverished background. His father was unable to work due to a mental illness and his mother had to become his full-time carer, which meant there was no income. One teacher knew the family were so poor, the defendant sometimes had no money to buy food or even get to school. His mother had a stroke when he was in Form 3, which upset him immensely. This is why his parents eventually were moved to live in a nursing home. Some teachers have visited the 1st defendant whilst on remand, and the letters all submit the 1st defendant is deeply remorseful and will not commit further offences in the future.

Mr Hui has said all he can in mitigation on behalf of the 1st defendant. There is a mitigation letter from the defendant himself which explains why he was tempted to deliver drugs with the 2nd defendant for a monetary reward of only $200. He is ashamed of disappointing his family and will take the opportunity to learn a skill whilst in prison to ensure he will not be tempted to break the law in the future.

There was a letter from his elder brother which repeats their family background and he expresses his belief that his younger brother is truly remorseful. His older brother is here to support him in court today.

The 2nd defendant

The 2nd defendant is 21 years old and was 21 when he was arrested; he was a transportation worker. He studied up until Form 4 in the same school as the 1st defendant, but did not complete secondary school. He is single and lives with his mother and elder sister. His elder sister is in court today to support him.

The 2nd defendant has three previous convictions; all in 2012 for theft, assault occasioning actual bodily harm and robbery. For the first two convictions, he was sentenced to a probation order but for the last conviction of robbery, he was sentenced to a rehabilitation centre order.

Mr Boyton has said all he can say in mitigation on behalf of the 2nd defendant. I have a letter from a charitable organisation as well as two certificates of appreciation from that same organisation to express their thanks to the 2nd defendant for his charity work from 2018. The letter says he started to participate in charitable work last year after his arrest, and was enthusiastic and respectful to the the elderly when he helped out. The letter also asks for leniency on his behalf and repeats that his remorse is genuine.

For both the defendants, their best mitigation is their pleas of guilty.

Starting Point

Mr Ma from the prosecution has submitted that section 56A of the Dangerous Drugs Ordinance should apply to the 2nd defendant. He submits the 2nd defendant has used a minor, the 1st defendant, by employing him or hiring him to commit this offence. That is an aggravating factor which should enhance the sentence of the 2nd defendant. I have considered the authority that he has submitted, HKSAR v Lam Kam Kwong [2002] 1 HKC 541.

Mr Boyton points out that although the 1st defendant said the 2nd defendant arranged for him to meet that night and carry the drugs in his pocket for a reward of $200, the 2nd defendant denies this. He says in fact it was the other way around and it was the 1st defendant who arranged for the 2nd defendant to meet him to commit this offence.

Be that as it may, I am not inclined to accept the prosecution’s submission when in this case, both defendants went to sell the drugs together, for which both would receive a monetary reward. Unlike the authority relied upon by Mr Ma, this is not a case where a drug trafficker sends out a minor with the promise of a financial reward to carry or sell the drugs himself alone and bear the risks involved. Both men here are equally culpable.

As far as trafficking cocaine is concerned, the guidelines in The Queen v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine and the starting point for trafficking in between 10 to 50 grammes of narcotics is 5 to 8 years’ imprisonment. That authority involved heroin but sentencing for trafficking in cocaine is aligned to the guidelines for trafficking heroin, Attorney General v Rojas [1994] 1 HKC 342.

For this quantity of cocaine, mathematically speaking, the starting point of 7 years and 2 months would be appropriate.

The 1st defendant pleaded guilty at the committal stage and is entitled to a discount of 33 per cent. The 2nd defendant indicated his plea of guilty after a trial was fixed but sometime before the first day of trial. Therefore, he is only entitled to a discount of between 20 to 25 per cent.

I have considered the facts, the mitigation and backgrounds of both defendants. As I have said already, their best mitigation is their pleas of guilty. I have considered the fact the 1st defendant has a clear record, but the seriousness of this offence outweighs that fact. I note he was only 17 at the time of the offence and whilst that is young, it is not an extremely young age. I will take a starting point of 7 years for both defendants as I see them equally culpable in their roles.

The 1st defendant is entitled to a full discount after his plea and is therefore sentenced to 4 years and 8 months.

The 2nd defendant would benefit from a discount of 25 per cent after this plea and is therefore sentenced to 5 years and 3 months.