Lau Kai-fung, D1, and Yeung Kin-hang, D2, each pleaded guilty to one count of trafficking in a dangerous drug, the 1st charge against D1 and the 2nd charge against D2. Both offences took place on 17 December 2018 at Hong Kong International Airport. The 1st charge concerned 3.19 kilogrammes of a solid containing 2.51 kilogrammes of cocaine. The 2nd charge concerned 3.79 kilogrammes of a solid containing 3.05 kilogrammes of cocaine.
On the day in question, both defendants imported the cocaine in question from Maldives. They pleaded guilty to the respective charge against them and admitted the Summary of Facts dated 28 October 2019. Both defendants gave evidence for the prosecution at the trial of Lam Yuen-yi, the 3rd defendant referred to in the Summary of Facts. Lam was acquitted by the jury of the sole count of conspiracy to traffic in a dangerous drug.
The Facts
The Summary of Facts admitted by D1 and D2 reads:
1. On about 17 December 2018, the police and the C&E Department conducted a joint operation against D1, D2 and D3, who did not know each other before this incident.
2. On 13 December 2018, all defendants boarded the same flight CX 601 to Maldives. Three days later, all of them boarded flight CX 602 to Hong Kong together at Maldives on 16 December 2018. They arrived at the Hong Kong International Airport in the morning on 17 December 2018.
3. At 9 am on 17 December 2018, near the baggage claim area of the airport, police officers kept all three defendants under observation, who just returned to Hong Kong from Maldives together. D1 and D2 were seen chatting with each other while waiting for their suitcases and D3 standing nearby. Subsequently, they, each carrying a suitcase, were intercepted by customs officers when passing the “Green Channel”. A search was conducted.
4. In a hidden compartment of D1’s purple suitcase, eight plastic bags containing a total of 3.19 kilogrammes of a solid containing 2.51 kilogrammes of cocaine was found (worth about HK$3,301,650)(Count 1). In a hidden compartment of D2’s black suitcase, another eight plastic bags containing a total of 3.79 kilogrammes of a solid containing 3.05 kilogrammes of cocaine was found (worth about HK$3,922,650)(Count 2).
The Arrest
5. All of them were arrested by the police. Under caution at the scene:
(a) D1 admitted that he had helped D2 and D3, whom had been intercepted together with him, to bring cocaine for a reward of $30,000.
(b) D2 admitted that he was together with D1 and D3, whom had been intercepted together with him, and he knew that his suitcase contained “white powder” which was a dangerous drug.
D1’s Video-recorded Interview (VRI)
6. In his VRI, under caution, D1 said, inter alia, the following:
(a) D1, who worked in a pub, was in need of money and he left his mobile number to some acquaintances he met in the pub.
(b) Later on, a person called “Kau Gor” contacted him via WhatsApp, inviting him to go to Maldives and promising to give him a reward of $30,000. He then sent photos of his passport and identity card to Kau Gor through WhatsApp for reservation of flight and hotel.
(c) Upon the instructions of Kau Gor, D1 met D2 and D3 at the airport for the first time. D1 and D2 handed their passports to D3, who then checked in for them. The three of them then boarded a flight to Maldives.
(d) After arriving at a hotel of Maldives, Kau Gor told D1 over the phone that someone would deliver a suitcase containing cocaine to him and asked D1 to look after it. Subsequently, an unknown Chinese man came to the room of D1 and D2 and delivered two suitcases to them. D1 knew there was cocaine inside.
(e) D1 and D2 were responsible for the purple and black suitcases respectively.
(f) A few days later, the three of them boarded the same flight and returned to Hong Kong.
D2’s Video-recorded Interview (VRI)
7. In his VRI, under caution, D2 said, inter alia, the following:
(a) About a month before the arrest, a person called “Kau Gor” offered a job to D2 through WhatsApp - to bring a suitcase containing dangerous drugs from Maldives to Hong Kong for a reward of $50,000. However, he did not know the type and quantity of the drugs.
(b) Kau Gor then, through WhatsApp, sent him electronic flight ticket and the mobile numbers of D1 and D3.
(c) On 13 December 2018, he met D1 and D3 at the Hong Kong airport, and the three of them boarded a flight to Maldives. He knew that D1’s surname is Lau and D3 is called “Lam Yuen-yi”. Kau Gor told him that D3’s role was being an escort.
(d) D1 and D2 stayed in the same room in the hotel in Maldives. On 14 December 2018, two males came and delivered a purple suitcase and a black suitcase to them. D2 knew that dangerous drugs were hidden inside the suitcases, and in normal circumstances, they could not be detected by machines.
(e) D1 handled the purple suitcase whilst D2 handled the black one. After receiving the suitcases, they flied back to Hong Kong on 16 December 2018. They did not leave immediately after receiving the same, because that would be “safer” to do so (as Kau Gor has told D2).
(f) The drugs inside the purple suitcase did not belong to him.
(g) D2 was not willing to disclose any details about Kau Gor.
Background Information of D1 and D2
D1
D1 was born in 1997. He is 24 years old and he was 20 at the time of the offence. He has a clear record. He is single. He lived with his mother and brother in Tsuen Wan before his remand. He worked as a technician.
D2
D2 was born in 1995. He is 27 years old. He had a clear record at the time of the offence but he was convicted of two counts of conspiracy to defraud in October 2020 and was sentenced to a total term of 30 months’ imprisonment. I am told the offence period was July 2018, that is, predated the present case. I am also told D2 has finished serving his sentence for the District Court case. He was unemployed at the time of arrest. D2 is single. He lived with his mother in Sheung Shui before his remand.
Mitigation
Ms Lo for D1 and Ms Leung for D2 have kindly placed before me full written mitigations, which set out in details the background of the defendants and the matters that they urge me to take into account in sentencing D1 and D2.
Consideration
I have considered all the matters urged on the defendants’ behalf by counsel, the authorities and materials placed before me.
Starting Point
Charge 1 concerned 2.51 kilogrammes of cocaine and Charge 2 concerned 3.05 kilogrammes of cocaine. The quantities of cocaine fall within the second band of the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437, ie a starting point between 23 and 26 years’ imprisonment for 1,200 grammes to 4,000 grammes.
Applying the guidelines in Abdallah, in my judgment, Charge 1 calls for an initial starting point of 24 years and 4 months; Charge 2 calls for an initial starting point of 24 years and 11 months.
International Element
The Court of Appeal held in Abdallah at paragraph 42 that if there is an international element in the trafficking, there should be an enhancement of at least 2 years for drugs above 1,000 grammes.
I take an enhancement of 2 years for Charge 1 and Charge 2 because of the international element. The starting point after enhancement for Charge 1 and 2 are: 26 years and 4 months, 316 months that is, and 26 years and 11 months, that is, 323 months.
Guilty Pleas
Both D1 and D2 are entitled to the full one-third reduction for their timely pleas.
Clear Record
Both counsel urge me to take into account the clear record of D1 and D2.
In the case of D2, it should be noted that though he had a clear record at the time of the offence, he committed Charge 2 after he had committed the offences of conspiracy to defraud for DC 259/2019 and while he was on police bail. I am sure his hitherto clear record had been taken into account by the sentencing judge in the District Court case. The fact that D2 committed Charge 2 while he was on police bail for DC 259/2019 counts as an aggravating factor.
Bearing in mind all the matters said on his behalf by Ms Leung, I would only enhance the sentence modestly by 1 month and it would bring D2’s sentence up to 27 years’ imprisonment, that is, 324 months.
It is well settled that the one-third reduction for the guilty plea has already taken into account the hitherto clear record of a defendant. I am not prepared to give any additional reduction for the clear record of D1 and D2.
Assistance to the Authority
Both D1 and D2 are not in the supergrass category. D1 and D2 had not only given information but had proceeded to give evidence which the prosecution relied on as truthful and material at the trial of D3. I am prepared to give D1 and D2 a discount of 50 per cent, including the one-third reduction for the guilty pleas.
With the 50 per cent reduction, the starting point of 26 years and 4 months for Charge 1 is reduced to 13 years and 2 months’ imprisonment, that is, 158 months. D1 was 20 at the time of the offence, hence he was not a person of extreme youth. But for the relative young age of D1, I am prepared to give him an additional reduction of 4 months on account of his age.
For the reasons given, for Charge 1, I sentence D1 to 12 years and 10 months’ imprisonment, that is, 154 months.
With the 50 per cent reduction, the enhanced starting point of 27 years, that is, 324 months, for Charge 2 is reduced to 13½ years, that is, 162 months. D2 was 23 years old at the time of the offence, I am not prepared to give him any additional discount on account of his age.
For the reasons given, for Charge 2, I sentence D2 to 13½ years’ imprisonment, that is, 162 months.