HKSAR v. LAU CHUN TING

HCCC 208/2023 and HCCC 209/2023

[2025] HKCFI 4058

HCCC 208/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 208 OF 2023

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AND

HCCC 209/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 209 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.  LAU Chung-ting (“LAU”) was charged with a single count of “Attempting to trafficin a dangerous drug” (HCCC 208/2023).  The particulars of the charge avers that he, on 22 February 2021, at Kwong Yuen Estate, Siu Lek Yuen, Shatin, New territories, in Hong Kong, together with SHUM Pak-ue (“SHUM”), attempted to traffic in a dangerous drug, namely, 1,950 grammes of a liquid containing 652.3 grammes of cocaine.  LAU pleaded not guilty to the charge and was unanimously convicted by the jury after trial on 11 December 2024.

2.  SHUM was separately charged with another count of “Attempting to trafficin a dangerous drug” (HCCC209/2023).  The particulars of the charge avers that he together with LAU, attempted to traffic the same batch of dangerous drug, namely, cocaine at the same time and same location.  SHUM pleaded guilty to the charge and admitted the summary of facts in the magistrate court and was committed to the Court of First Instance for sentence. 

3.  On 29 November 2024, SHUM appeared before me for sentence, having confirmed his plea and the admission of the facts.  The sentence was however adjourned until the conclusion of the trial of LAU in which SHUM is expected to be testifying for the prosecution as an accomplice witness which he did so and became PW2 in the trial.

FACTS

4.  On 17 February 2021, a parcel from South America was intercepted and examined by Customs Officer 18111 (PW4).  After running a liquid test on the bottles found inside the parcel by PW4, it showed positive results of cocaine.  

5.  Customs officers then conducted a controlled delivery operation on 19 Feb 2021 at the delivery address, namely, Room 2014, Banyan House, Kwong Yuen Estate, Shatin.  CO 16297 (PW1) took the parcel from CO 18111 (PW4) and brought it together with a piece of acknowledgement of receipt and a SpeedPost notification card and went up to the address to try to deliver the parcel but was of no avail.  PW1 then left the notification card in the mailbox of the premises and the parcel was handed back to PW4 who is the exhibit officer.  PW4 then returned to the Customs office in the afternoon and created a dummy parcel (P23) without the suspected dangerous drug.  On 22 February 2021, PW1 took out the original and dummy parcels and the acknowledgement of receipt from the locker of the office and disguised himself as a postman and arrived at the Kwong Yuen Post Office in the morning.  SHUM (who was the accomplice witness (PW2) in LAU’s trial, later went to the post office at about 1155 hours with the said notification card and collected the parcel from PW4.  SHUM carried the parcel in his hands and after sitting in an open bench near a clock tower and talking to his mobile phone for a while, he went into the McDonald’s in Kwong Yuen Plaza and sat down on a table near the glass panel and continued to talk with his mobile phone.  Later, at about 1255 hours, LAU arrived at the McDonald’s and he went up to the table where SHUM was seated.  They nodded their heads and briefly spoke to each other and then LAU took away the parcel on the table and left McDonald’s.  Both LAU and SHUM were subsequently arrested by Custom Officers after they left. 

6.  LAU was arrested by CO 1644 (PW3) with the assistance of CO 17313 (PW5) when he left the McDonald’s with the parcel and intended to board a taxi in the taxi stand opposite the bus terminus.  In gist, under caution, LAU said he has no knowledge of the items inside the parcel and he just took it for a friend.  When he was further asked by PW3 which friend asked him to take the parcel.  LAU replied that he did not know the friend.  His friend just asked him to take it to Kwun Tong and wait for further call.  Only after he actually arrived at Kwun Tong would he be told the exact address.  When LAU was asked if he had any means of contacting this friend, he said he would not answer.  He also said he did not know the male who gave him the parcel.  He said he received no reward for delivering the parcel and he just did it out of the goodness of his heart.  PW3 then asked LAU if he was willing to conduct a controlled delivery operation without any advantage and reduction in sentence, and provide passwords of his mobile phones for investigation purpose, LAU said “Won’t do and not willing.”

7.  When PW4 later opened the parcel in LAU’s presence, he denied any knowledge of the bottles of liquid inside the parcel.  He also said he had no knowledge of the original recipient of the parcel as stated in the airway bill or the recipient’s address of the parcel.

8.  In the trial, the prosecution contends that there is strong and sufficient circumstantial evidence to prove or infer that LAU was instructed to receive the parcel from SHUM by the drug dealer and he was intending to further deliver the dangerous drugs to others with a full knowledge that the parcel was containing dangerous drugs.  By the unanimous verdict, the jury obviously accepted the contention and totally rejected the testimony by LAU in court that he was just helping out his boss to collect the parcel which he believed contained only spices without any hesitation after careful deliberation.

9.  The parcel and the dummy parcel were also shown to SHUM upon his arrest.  Under caution, SHUM stated, inter alias, the following:-

(i) he collected the parcel on behalf of “Gigi” whom he had recently met in an online discussion forum and had only spoken to her over the phone;

(ii) Gigi told him that someone would contact him after he collected the parcel;

(iii) someone with a contact number “6992 5414” had contacted him and the person told him to wait inside McDonald’s with the parcel;

(iv) an unknown person later arrived and took the parcel away;

(v) Gigi promised to give him HK$3,000 as reward;

(vi) he took the job as he was in debt of several tens of thousand dollars;

(vii) he had asked Gigi what was inside the parcel, and was told it was clothing;

(viii) the dummy parcel was the parcel he acknowledged earlier; and

(ix) he denied that he had any knowledge of the parcel and the liquid contained therein.

10.  SHUM testified in LAU’s trial and said he was in fact asked by his friend Sunny Ma to provide his home address at Banyan House, Kwong Yuen Estate for the delivery of the parcel which he knew would contain dangerous drugs in order to earn some quick money.  SHUM testified that Sunny Ma instructed him that the male who came to collect the parcel would say that he was introduced by Gigi.  Before LAU came to collect the parcel from him, he said the male that called him on the phone about the parcel also said he was introduced by Gigi and LAU was wearing the same green long sleeve clothing as described by that male that he spoke on the phone.  

11.  The street value of the cocaine seized in total was HK$ 874,082 according to the Admitted Facts.

CRIMINAL RECORDS AND MITIGATION

12.  LAU is now 26 years old.  He has 2 previous criminal records, both are drugs-related.  The first one being a similar record of trafficking in dangerous drugs in 2016 when he was 18 years old for which he was sentenced in the High Court for 5 years and 4 months’ imprisonment.  The second one is a simple possession record which was related to the drugs which was found at his home during the house search in connection with the present case to which he had already pleaded guilty in the magistrate court and he was sentenced to 3 months’ imprisonment in 2023.

13.  Mr. Cheung, counsel for LAU, informs the court that before arrest, LAU used to work as a casual construction worker earning about $600 to $700 daily.  He has been suffering from diabetes for 10 years and has to take medications daily.  He was educated up to Form 3 level.  He used to live with his mother and a younger sister and an elder brother before arrest.  His mother now in her fifty’s is suffering from kidney problem and was hospitalized during the trial and now is receiving CSSA subsidy monthly.  His father already passed away due to heart disease in 2008.  At the time of offence, LAU’s income was unsteady and could not make ends meet.

14.  Mr. Cheung asks the court not to enhance the sentence on account of his similar trafficking record in view of his expected lengthy sentence.  Mr. Cheung has said all he can say on behalf of LAU.  In truth, not much can be said in mitigation for an offence of this nature consisting of such a large quantity of dangerous drug especially when the defendant chose to plead not guilty and was convicted after trial.

15.  SHUM is now 29 years old.  He was 25 when he was arrested for this offence and he was detained since February 2021.  He has a clear criminal record.  He was born in Hong Kong and his education level was upper secondary.  

16.  Ms. Lai, counsel for SHUM, told the court that before arrest, he lives with his parents aged 60 and 61 respectively.  He has a harmonious relationship with his family.  In fact, SHUM did quite well academically in school and received numerous prizes and certificates of achievements.  Also, he was an outgoing student and being appointed as vice class representative.  He participated in all kinds of school activities and sports competitions.

17.  Despite his achievements, SHUM decided to start working after completing F.6 in order to relieve the financial burden of the family.  He had worked as shop assistant, waiter and bar tender.  He later worked as a chef apprentice and developed a passion for cooking.  

18.  However, it was also during the time that SHUM worked in the kitchen that he had followed the others to indulge in the habit of gambling and ultimately accumulated huge debts.  In order to repay the debts, he worked two jobs, first as a chef and then as a loading worker at the container terminal.  SHUM lost his part time job during the COVID and his salary as a chef was also reduced.  He was subsequently told by his dubious peers to earn quick money by simply receiving a parcel with drugs.  He did not realize the seriousness and accepted the offer and he committed the offence out of greed.

19.  Ms. Lai submits that from the letter, one can see SHUM had clearly underestimated the legal consequences of his act and during the remand, he has tasted the bitterness of the prison life but he takes the chance to reflect his wrongdoings as reflected in his own letter of mitigation.  At the same time, his family members did not give up on him and pay regular visits to him.  According to the letter written by the parents, SHUM is a filial son and they were shocked to know that he is involved in such serious offence.  SHUM feels ashamed and he is determined to turn a new leaf and becomes a chef after serving his time in prison.  He plans to take some courses and equips himself with a view to start a new life and continue to take care of his parents.  

20.  As for the international element involved in this case, Ms. Lai submits that SHUM initially has no knowledge that the parcel was from overseas.  He was instructed to obtain the parcel from the post office and pass it to others.  The parcel was collected in local post office instead of international courier companies such as DHL or Fedex etc.  The card he received to collect the parcel contained only information of the recipient but not the sender and it was only until he went to the post office and collected the parcel that the information was stated on the label.  As SHUM is going to face a long incarceration, Ms. Lai urged the court to exercise the discretion to impose a lenient sentence.

21.  Ms. Lai stressed that SHUM not only provided a Non-Prejudicial Statement but also gave evidence in the trial of LAU as an accomplice witness.  As a result, LAU was convicted by the jury.  Ms. Lai further points out that SHUM also provided information as to the person who invited him to take part in the trafficking but unfortunately, that person was not located up to this moment.  In such circumstances, she urges the court to give him a discount of 50% as suggested by the Court of Final Appeal in Z v HKSAR [2007] 10 HKCFAR 183.  

SENTENCING CONSIDERATIONS

22.  In sentencing, I have taken into account the facts of the case, the nature and the quantity of the drugs involved, the relevant sentencing guideline and authorities and the mitigations put forward by both defendants.

23.  It is well established that trafficking in a dangerous drug is a very serious offence which carries a maximum sentence of life imprisonment and a fine of HKD 5 million.  I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  It was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.

24.  In the approach to sentencing, six steps have been identified which the court should take.  They are assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all of the circumstances of the offence and the defendant.

25.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized.  

26.  For many years, the tariff for trafficking cocaine is applicable to the tariff for trafficking heroin which is set out in the authority of R v LAU Tak-ming and Others [1990] 2 HKLR 370 (see Attorney General v Rojas [1994] 1 HKC 342).  The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 later gives further guidelines for larger quantities of narcotics.  And based on the quantity of 652.3 grammes of cocaine, the appropriate starting point is 20 years and 3 months.

27.  Based on the quantity of the drugs and the prevailing tariff laid down by the Court of Appeal, both Mr. Cheung and Ms. Lai have rightly submitted that the basic starting point should be 20 years and 3 months’ imprisonment at the time when they prepared their first mitigation submissions.

28.  However, when the latest authority HKSAR v Huang Ruifang [2025] HKCA 234 was handed down on 5 March 2025, the Court of Appeal laid down a revised sentencing guideline so that for quantity between 500 and 1,500 grammes of cocaine, the starting point is now between 16 and 20 years.  The revised starting point is therefore lower and for the same quantity of cocaine will now only attract a starting point of 16 years and 7 months.

29.  The second step of the six steps is to assess the defendant’s role and culpability based on the evidence.  

30.  When arrested by the Custom Officers, LAU was about to board a taxi after he had just received a parcel of drugs from SHUM which he intended to further convey to another person in Kwun Tong.  I have no reason to doubt that he must have received or expect to receive a financial reward for being a courier of the parcel of drugs.  This is the role that will I attribute to LAU for the purposes of sentencing and the basic starting point will be applied.

31.  When arrested by the Custom Officers, SHUM has just collected the parcel from the post office and according to the instruction given to him, he took the parcel to the McDonald’s and waited for someone to collect the parcel from him.  He also admitted under caution that he was promised to receive a financial reward of HK$3,000 for being a courier of the parcel of drugs and this is also the role that I will attribute to SHUM for the purposes of sentencing.

32.  As for SHUM’s case, the parcel that contains the cocaine is originated from overseas so there is also the question of “international element”.

33.  In Lee Ming Ho, the Court of Appeal revisited Abdallah in light of the Court’s recent approach in Herry Jane Yusuph and held that “international element” which was described in Abdallah as one of the three examples of aggravating factors calling for enhancement of the starting point should now be regarded as only a matter going to the role and culpability of the offender when identifying the starting point, rather than as separate and additional aggravating feature in order to avoid double counting.

34.  One must not lose sight of the fact that the importation of drugs to Hong Kong from overseas should be regarded as more seriously than the usual dealing of drugs locally.  Ms. Lai submits that SHUM had no knowledge that the parcel he was tasked to collect from a local Post Office was originated from overseas.  In Lee Ming Ho, the Court of Appeal observed that the fact that a defendant was collecting a parcel which he must have known had arrived at the Post Office from abroad, was sufficient to establish the “international element” by way of aiding and abetting the importation of cocaine into Hong Kong.  In my judgment, there is no good reason why SHUM would hold such a belief that the parcel was delivered locally simply because the parcel in question was handled by a local post office instead of DHL or FedEx.  Moreover, the SpeedPost notification card he received from his mail box clearly indicates that the parcel was received through SpeedPost of Hong Kong Mail.  Because of this reason and the quantities involved in the present case, I would have thought that the presence of this international element heightens the culpability of this defendant and warrants at least an additional 12 months’ imprisonment from the basic starting point.  

35.  However, as the Court of Appeal has also observed in LEE Ming-ho, in suitable cases, the court can still exercise its discretion to distinguish the role of the offender who simply goes to the Post Office on someone’s instruction to collect a parcel posted from aboard which he knows contain dangerous drugs.  This type of offender is more akin to aiding and abetting someone else’s act of importation which is exactly what SHUM was doing in the present case.  As a result, I will exercise my discretion and impose only an additional 9 months’ imprisonment to the basic starting point of 16 years and 7 months to 17 years and 4 months in order to properly reflect the role and culpability of SHUM in this case.

36.  Therefore, taking into account the third step of where within the guidelines the defendant should lie, the sentence for LAU will be determined by the relevant tariffs and the quantity of dangerous drugs involved without an enhancement on account of his role.  The sentence of SHUM will be also determined by the same basic starting point and the presence of international element.  Accordingly, I find the appropriate starting point for LAU to be 16 years and 7 months and SHUM 17 years and 4 months.  

37.  The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors.  For the aggravating factors, although in LAU’s case, obviously the previous conviction of an offence of trafficking remains an aggravating factor, I took into account that this is still only his second conviction and the already lengthy sentence that he is going to serve, so I decide that I will not further enhance his sentence.  As for mitigating factors, LAU is convicted after trial and there will be no sentencing discount for timely plea.  He also specifically turned down the offer by the Custom officers to participate in the controlled delivery of the parcel and hence there would not be any further discount for assisting the authority.  There is no exceptional mitigating factors that I can identified.

38.  As for SHUM’s case, there is no aggravating factors that I can identified.

39.  As for mitigating factors, SHUM not only pleaded guilty to the charge which entitles him to the usual one-third discount but also gave a Non-Prejudicial Statement and came forward to testify against LAU in his trial and identified LAU as the person who collected the parcel from him inside the McDonald’s.  By the unanimous guilty verdict returned by the jury, they must have accepted the evidence of SHUM without any reservation.  In such circumstances, I agree with Ms. Lai’s submission that SHUM is entitled to a 50 % discount in total according to Z v HKSAR.  Apart from this, there is no other exceptional mitigating factors that I can identified, his resulting sentence is therefore 8 years and 8 months’ imprisonment.  

40.  The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also the defendants.  It is a very significant term of imprisonment and is especially so in LAU’s case, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.  Both defendants took the chance and were caught red-handed and they must now face the consequences.  As Mr. Cheung had also informed the court, LAU knows what is coming and he is already expecting to serve a long period of imprisonment before he can be released.

ORDER

41.  Based on the above reasons, LAU is sentenced to 16 years and 7 months’ imprisonment and SHUM is sentence to 8 years and 8 months’ imprisonment and I so order.