HKSAR v. LO CHI WAI

DCCC 1414/2024

[2025] HKDC 1648

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1414 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of trafficking in a dangerous drug, namely 17,092 grammes of herbal cannabis in herbal form.

Summary of facts

2.  The Defendant was stopped at the airport when he landed from Thailand. Inside his two suitcases a total of 21 bags of herbal cannabis was found.

3.  Under caution, the Defendant said that he brought the 2 suitcases of cannabis to Hong Kong for a reward of $60,000. He was supposed to contact his friend to hand over the drug at the airport for the reward.

4.  The street value was about HK$4.1 million.

Criminal record

5.  The Defendant has 23 previous convictions which including the following offences :-

(a)  One count of trafficking dangerous drugs in 2002 of which he was sentenced to imprisonment for 10 years and 6 months.

(b)  4 counts possession of dangerous drugs in 1993, 2013 (x2)  and 2018.

(c)  His last conviction was an offence of robbery in 2021 of which he was sentenced to imprisonment for 4 years and 4 months.

(d)  He was discharged from prison in March 2023.

Background

6.  The Defendant is now 48 years old. He is divorced and lived alone as he has lost contact with his family members. His parents had passed away. Before his arrest, he worked as a cleaner with a salary of about $18,000 per month.

Sentence

7.  This is a case of trafficking in herbal cannabis from Thailand to Hong Kong.

8.  In applying the guidelines, the six-step approach set out in HKSAR v Herry Jane Yusuph[1] should be followed.

Step 1: the applicable guideline tariff band

9.  In the present case, there are 17,092 grammes of herbal cannabis.

10.  The applicable sentencing tariff can be found in HKSAR v Nguyen Thang Loi[2]. Given the quantity of the amount of drugs involved, it falls into the sentencing bracket of 66 to 96 months for quantity over 15,000 grams.

Step 2: the defendant’s role and culpability

11.  The Defendant was arrested upon his arrival from Thailand to Hong Kong. Under caution, he said he would receive a reward of $60,000 and he was expected to contact a person upon his arrival. His role was a courier.

Step 3: the relevant band within the guideline

12.  The relevant band in the case of Nguyen Thang Loi is as follows :-

(a)  17,092g of herbal cannabis attract a sentence of 5 years and 8 months (68 months).

13.  The Defendant asked me not to follow the sentencing guideline in Nguyen Thang Loi as there was a potency difference in herbal cannabis and resin. The defence asked me to adjust the sentence downward as stated in the case of HKSAR v Lee Siu Kei[3]. However, as stated in the judgement (paragraph 14)  of Lee Siu Kei that the sentence is “governed by the weight of the herbal cannabis”.

14.  I disagree with the defence counsel, Mr Lee, that I should depart from the sentencing guideline as stated in Nguyen Thang Loi.

15.  As such the starting point remains at 5 year and 8 months[4].

Step 4: aggravating factor

16.  The defence accepted that there are 3 different aggravating factors in the present case :-

(a)  There is an international element - the Defendant brought the cannabis from Thailand to Hong Kong;

(b)  He has previously been convicted of trafficking in dangerous drug in 2002 and received a sentence of 10 years 6 months imprisonment. The defence said that it was over 20 years ago. Be that as it may, after his discharge from prison, he has not improved himself to change his way of life. He continued to commit further offences including robbery and false imprisonment (2013), possession of dangerous drugs (2013 and 2018), burglary, theft and handling stolen goods (2019)  and another robbery in 2021 until his discharge in March 2023. Then he committed the present offence in May 2024. The defence said that he was poorly educated and lived alone. I am shock to find such a mitigation or an excuse to commit such a serious crime. It simply tells me that the defendant has not learned from his past misdeed even he lost his freedom on numerous occasions which resulting in losing contact with his parents.

(c)  Committed the present offence while on police bail for 2 other cases.

17.  Finally, the defence said that a total of 3 months enhancement to the starting is enough. Again, I cannot agree with the defence as it serves no purpose of deterrence.

18.  The whole purpose of enhancement is to create a sentence which contains additional element of deterrence. However, I do bear in mind that it should not be out of proportion to the sentence.

19.  I consider that an additional 6 months sentence is appropriate. The total sentence arrives at 74 months[5].

Step 5: mitigating factor

20.  The only mitigating factor is his timely-plea, for which he is entitled to 1/3 discount, that is 24.6 months[6] deduction. I round down to 24 months.

21.  As such, the sentence arrives at 50 months’ imprisonment[7].

Step 6: totality

22.  I have looked at the sentence and I am of the view that they are fair, just and balanced in the circumstances of the offence and to reflect the culpability of the Defendant.

Final sentence

23.  The Defendant is order to serve a period of 50 months’ imprisonment.