HKSAR v. LAU HIU TO AND ANOTHER

DCCC 936/2017

[2018] HKDC 511

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 936 OF 2017

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REASONS FOR SENTENCE

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1.  D1 and D2 were jointly charged with two counts of trafficking in a dangerous drug (Charge 1 and 2) and D1 was separately charged with another count of trafficking in a dangerous drug (Charge 3) all contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  Both defendants pleaded guilty before me and after admitting to the Summary of Facts, I found D1 guilty of all three charges as charged and D2 guilty of all two charges as charged.

Facts

3.  At around 2240 hours on 20 May 2017, a team of police officers were conducting anti-crime patrol outside Pok Fu Lam Public Library.  They spotted three persons including two males and 1 female including D1 and D2 acting furtively inside a stationery vehicle.  D1 was sitting at the front passenger seat while D2 was sitting behind D1.

4.  The police intercepted them for enquiry.  Upon search of D1, one transparent re-sealable plastic bag containing three packets of suspected cocaine (El) was found on the person of D1.  Upon enquiry, D1 said the coke was for distribution and he was arrested for trafficking in a dangerous drug (Charge 1).  Under caution, D1 admitted that the dangerous drugs were to be distributed.

5.  A further search of the vehicle by the police yielded another transparent plastic bag containing 19 packets of suspected cocaine (E2) in a gap in between the seat and back of the front passenger seat.  Dl & D2 were arrested for trafficking in dangerous drugs (Charge 2).  Under caution, D1 admitted that the dangerous drugs were to be distributed but D2 said the dangerous drugs did not belong to her.

6.  At the time of their arrests, D1 had in his possession one mobile phone and $1,720 cash; D2 had in her hand one iPhone, $18,980 cash in her handbag and one Samsung mobile phone (“the Samsung Phone”) in her handbag.

7.  Upon further cautioning, D1 revealed that he had more cocaine placed at Tin Wan and he was willing to lead the police to them.

8.  At 0232 hours on 21 May 2017, D1 led the police to the rear staircase of 36/F on Tin Kin House, Tin Wan Estate, where one transparent plastic bag containing 20 packets of suspected cocaine (E3) were found in a fire hose.  D1 was thus further arrested for “Trafficking in dangerous drugs” (Charge 3).  Under caution, D1 said that was all the coke he had.

9.  It was later confirmed by the government chemist that:-

(i) El is containing a total of 0.56g of a solid containing 0.5g of cocaine;

(ii) E2 is containing a total of 3.62g of a solid containing 3.4g of cocaine;

(iii) E3 is containing a total of 3.96g of a solid containing3.7gof cocaine.

10.  In the video-recorded interview, D1 admitted that he would distribute the coke/cocaine in bars.  A few weeks before 20 May, 2017, he bought the cocaine from a person known as “Ma Lau” for $6,000.  He placed the 2 bags each containing 20 packets of cocaine, 1 bag containing 10 packets of cocaine in a rear staircase in Tin Hong and he sold the drugs in Shatin area at around $300 for each packet of cocaine.

11.  In the second video-recorded interview, D1 admitted the dangerous drugs found at the passenger seat and dangerous drugs found on his body belonged to the same batch of dangerous drugs.  He further admitted the substance found at Tin Kin House was cocaine that he placed the dangerous there about a few weeks ago.

12.  In the WhatsApp application in the Samsung Phone, police found conversations related to ordering and sellingof dangerous drugs.  There were voice messages with male voices asking about drugs and a female voice answering the questions and quoting prices.  After listening to those voice messages, D2 admitted in her second video-recorded interview that she was only helping D1 to repeat his messages to the others as D1 was not good in verbal communication; she knew it was about dangerous drugs trafficking and the female voice in the voice messages was hers.

13.  The estimated retail price of El was $703.40, E2 was $4,547 and E3 was $4,974.

Background & Mitigation

14.  Both defendants are 19 years of age and with no previous conviction record.

15.  D1 is single and lived with his parents in Shatin.  He dropped out of school while studying in Form 2 and had worked as a warehouse worker and a kitchen assistant.

16.  D2 is also single and his parents has divorced and her father cannot be contacted.  D2 was taken care by her grandmother when she was small and later she was sent to a hostel until she was 16.  After discharge from the hostel, she co-habitated with her boyfriend who was arrested together with her and D1 on 20 May 2017.

17.  Mr Kong, mitigating on the D1’s behalf, informed me that D1’s family members are in court today to support him.  D1 committed the offence in order to earn some quick money because the family was in financial difficulty after his father suffered a heart disease in October 2016 and lost his earning capacity and he was lured to commit the present offences due to his financial situation.  D1 is very remorse and he promise not to commit any offence in the future and he wrote a letter to the court and asked for a chance.

18.  Mr Fung, mitigating on D2’s behalf, asked me to consider ordering the sentences to be imposed to run concurrently.  Mr Fung also informs me that the D2 is remorseful for having committed the present offences and asked me to give her the full one-third discount upon her plea.  He emphasized that D2 has been foolish to assist D1 in the case and she was abused by her boyfriend and even tempted to take dangerous drugs.  The present offences allow her to have a good understanding of what she was doing in the past and she was truly remorseful and will stay away from drugs and also her boyfriend in the future.  Mr Fung asked me to consider a lower starting point because of her role in the offences.

19.  Trafficking in a dangerous drug is a serious offence.  A person convicted on indictment of trafficking in a dangerous drug is liable to a fine of $5 million and to imprisonment for life.

20.  In the circumstances of the present case where the first two offences were committed at the same time and the facts of all the three charges were closely linked, in that the dangerous drugs in the Charge 1 and Charge 2 was obviously connected with the dangerous drugs in Charge 3, a proper approach is to have regard to the total amount of dangerous drugs in the related charges to arrive at an overall starting point. The authorities are HKSAR v Chow Yu Chi, CACC 359/2000, and HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

21.  In AG v Rojas [1994] 1 HKC 342, the Court of Appeal has said that the sentencing guideline for heroin are applicable to cocaine.  The relevant tariff was set down in R v Lau Tak Ming and Others [1990] 2 HKLR 370.  For a quantity up to 10 gramme, the starting point of sentence is between 2 to 5 years’ imprisonment.  The cocaine involved here for the first two charges against D1 and D2 amounts to 3.9 grammes and the cocaine involved for the three charges against D1 amounts to 7.6 grammes.

22.  Having considered all the circumstances of this case and the defendant’s background, I am of the view that the appropriate starting point for the trafficking of cocaine for the first two charges alone is one of 39 months’ imprisonment and for all three charges combined is 51 months’ imprisonment.

23.  D2 obviously played a pivotal role in the offences as she was responsible for communicating with those buyers and provided them with the necessary information on price and quantities for sale.  I therefore rejected the submission that she played a lesser role in the offences.  In my mind, D2 was equally culpable as D1.

24.  Each defendant tendered a timely plea and will be given a full one-third discount in each charge and that is the only effective mitigation.  The Court of Appeal had said family circumstances virtually play no part in mitigation of serious offences and the court never accept economic reasons for committing crimes.  Each defendant is young, only 19, but they are not extremely young and clearly a deterrent sentence is called for and I consider the only appropriate sentence is immediate custodial sentence.

25.  Since D1 and D2 were only involved in the first two charges and D1 was further involved in Charge 3, it would not be appropriate to impose an overall sentence in respect of the all three charges because D2 was not involved in Charge 3.  I therefore have to impose one overall sentence for the first two charges for both D1 and D2 and one overall sentence for Charge 3 for D1 alone.

26.  I now have to consider the question of totality.  The sentences for the all three charges clearly are to run concurrently.  The sentence after reduction for D1 and D2 should be 34 months’ imprisonment and 26 month’s imprisonment respectively.

27.  Because of their age and clear records, finally I shall reduce their sentences by a further 2 months.  As a result, D1 will serve a total of 32 months’ imprisonment for Charge 1 to 3 and D2 a total of 24 months’ imprisonment for Charge 1 & 2.

28.  In summary, the sentences are as follows:-

   (All sentences to run concurrently)