HKSAR v. LAM WAI LUNG

HCCC 258/2024

[2025] HKCFI 2613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 258 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant faces a single charge of “Attempting to traffic in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 and section 159G of the Crimes Ordinance, Cap. 200.

2.  The subject matter of the dangerous drug involves 958 grammes of a mixture containing 613 grammes of heroin hydrochloride (a salt of heroin). 

3.  He pleaded guilty in the magistrate court on 8 August 2024 and also admitted the summary of facts. The case was committed to the Court of First Instance for sentence.

4.  This morning, he appears before me, having confirmed his plea and the admission of facts.

FACTS

5.  The prosecution case has been fully set out in the summary of facts.  In gist, an air-consignment was presented to the Customs for clearance on 29 May 2023.  The Custom Officer examined the consignment and found one of the carton boxes (the “Parcel”)  to be suspicious.  The parcel was opened and there was a blue rectangular-shaped artwork (“E1”)  therein.  E1 was found to be in poor quality and was exceptionally heavy.  The Custom Officer thus drill-opened the E1 and found some heroin (“E2”)  concealed therin.

6.  The recipient of the Parcel was stated to be one Poon Tak Ming.  According to the contact number as provided, the Custom Officer conducted a controlled delivery operation and replaced E2 with some rice flour as dummy on 31 May 2023.  The Custom Officer disguised himself as the courier and called the contact number.  The person picked up the call subsequently arranged with the Custom Officer to pick up the Parcel on the next day.  At around 10:33 am, the Custom Officer received a call and the caller claimed himself to be “Mr. Poon” and he said the Parcel would be picked up by his colleague.  At around 10:45am, the Custom Officer arrived at the junction of Chatham Road North and Wa Fung Street and found the defendant looking around thereat.  Later, Defendant walked towards the Custom Officer and claimed that he was there to collect the goods on behalf of his friend Poon Tak Ming.  Upon showing his HKID card to the Custom Officer, the Defendant received the Parcel and signed on the delivery note to acknowledge receipt of the Parcel.  Upon signing, the Custom Officer immediately revealed his identity and arrested the Defendant.  Under caution at scene, Defendant claimed that he did not know the content of the Parcel and claimed that the Parcel did not belong to him but Mr. Poon, who asked him to collect the Parcel on Poon’s behalf.  Defendant further claimed that he would pass the Parcel back to Mr. Poon upon receipt and he would not receive any reward for doing the same.  Defendant agreed to take part in the controlled delivery for delivering the Parcel to Poon Tak Ming.  Body search was then conducted upon Defendant and 2 mobile phones were found inside the left front pocket of his trousers.

7.  The controlled delivery was later conducted with the Defendant but was unsuccessful.

8.  Upon search on the 2 mobile phones found on Defendant, several messages relating to the setting up of the E-BUY account and the delivery address of the Parcel were found in one of the phones.  It was also found that all of the SIM cards were registered under the names of dead people and the relevant phone registrations were made after the death of the registered users.

9.  E2 was subsequently delivered to the Government Laboratory for examination.  The Government Chemist confirmed that E2 was heroin with a purity of 613 grammes in purity.  

10.  The estimated market value of heroin involved was HK$958,000.

BACKGROUND AND MITIGATIONS

11.  Defendant is now 51 years old.  He was born in Hong Kong and received education only up to Form 1 level.  He is married with one son and one daughter, aged 24 and 16 respectively.  He had been living with his parents both aged 70’s before his arrest.  The Defendant was running funeral service business before his arrest with unstable monthly income at an average of HK$30,000.  He was the sole breadwinner of the family, and he contributed all of his income for family expenditure, including children’s tuitions, household expenses and parent’s medications.  Mr. Chong, counsel of the Defendant, informed the court that after his arrest, the Defendant’s wife has been seeking jobs, and his son has quit school to work in the funeral industry for the family.  The son now earns around HK$13,000 per month and he contributes around HK$10,000 to the family.  For family’s finance, they sold their apartment and now live in a rented flat.  Mr. Chong told me that the Defendant committed the present offence out of greed of money as his income was unstable and his financial burden was growing when the parents are getting older.  On the material day, he was asked by his friend Poon to collect the parcel for him with HK$2,000 reward.  The Defendant appreciated now that financial pressure is no excuse of committing a crime.  He fully understands the seriousness of his misdeed and he is willing to face the consequences.  He is remorseful and he has already spent more than 2 years in custody.  He asks for leniency in sentence to allow him to reunite with his family soon and he promises not to re-offend in the future.  

12.  Defendant has two unrelated criminal records in 2019 and was only imposed a fine for each charge. He is not a drug addict.  

13.  He pleaded guilty to the charge at the earliest opportunity at the committal proceeding and he fully cooperated with the Customs to deliver the Parcel to Poon albeit unsuccessful.

14.  Mr. Chong has submitted letters of mitigations written by the Defendant, Rev Cheung, Vice-director general of Wu Oi Christian Centre, Rev Lee, Director General of Well Charity Foundation Limited and Mr. Chan Shun Chi as well as certifications by Funeral Business Association certifying that Defendant was appointed as the President from 2017 to 2023.

CONSIDERATION OF SENTENCE

15.  Trafficking in dangerous drug is a serious offence with a maximum sentence of life imprisonment and a fine of HK$5,000,000.  Those who involved in this serious offence would be expected to be severely punished by the court.  In sentencing the Defendant, I shall follow the six-steps approach as mentioned in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

THE FIRST STEP – GRAVITY OF THE OFFENCE

16.  The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved. 

17.  The type of the drugs in this case is heroin hydrochloride and the quantity involved is 613 grammes.

18.  According to the latest revised guideline laid down by the Court of Appeal in HKSAR v Huang Ruifang [2025] HKCA 234, the sentencing tariff for quantity of heroin between 500 – 1,500 grammes is 16 to 20 years.  Taking the above into account, for 613 grammes, arithmetically, a starting point of 16.45 years or 16 years and 5.4 months of imprisonment is appropriate for trafficking in the dangerous drug involved in the present case.

THE SECOND AND THIRD STEPS – ROLE AND CULPABILITY & THE RELEVANT BAND DEFENDANT COMES

19.  The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant. 

20.  The assessment made in the second step is relevant in determining where the defendant falls within or outside the band.

21.  The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

22.  I agree with the submission of Mr. Chong that the Defendant’s role in the present case was only limited to that of a courier and that the applicable band remain unchanged and there is no need to go outside that band.

23.  As such, in light of the facts of the present case, I consider that the basic starting point as stated would be appropriate in his circumstances.

THE FOURTH STEP – AGGRAVATING FACTORS

24.  The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

25.  There is no aggravating factor identified in this case.

THE FIFTH STEP – MITIGATING FACTORS

26.  The fifth step is to consider all mitigating factors.  As submitted by Mr. Chong, the Defendant pleaded guilty to the charges at the earliest opportunity during the committal proceedings and made admissions at the scene after his arrest.  The Defendant will be given a one-third discount for his timely and early plea.

27.  Apart from that, Mr. Chong also mentioned that the Defendant has spent two years in custody pending sentence and he now appreciated the seriousness and the consequences of the offence.  He also lost the precious time to spend with his family and his chance of re-offending is low.  I have no doubt that the Defendant is now truly remorseful and I have carefully read all his mitigation letters in his support. However, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting any further mitigation.

28.  As to the Defendant’s participation in the controlled delivery of the parcel to Poon, Mr. Chong accepts that it was a failed attempt with no result and he only wants to stress that the Defendant was genuinely remorseful and fully co-operative with the authority after arrest.

29.  Therefore, I will not reduce the sentence further apart from the one-third discount given for the Defendant’s timely and early plea.  After applying such a discount, the Defendant’s sentence is reduced from 16.45 years to 10.96 years (or 10 years 11 months) of imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

30.  The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

31.  In my judgment, the final sentence of 10 years and 11 months’ imprisonment on the trafficking charge is, of course, harsh for the defendant.  However, in light of the above, the fact that the offence he committed is serious, and the harm to the society, I have no doubt that the sentence is fair, just and balanced in the circumstances.