HKSAR v. LING YIU KAY

[English Translation – 英譯本]
HCCC125/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 125 OF 2008

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Charges: Trafficking in a dangerous drug, etc.

Sentence
The following is a transcript of the digital recording

COURT: The defendant, Ling Yiu Kay, is charged with two counts of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3), Cap. 134 of the Laws of Hong Kong.  Having pleaded guilty before the magistrate and admitted the facts of the case, the defendant is now committed to this Court for sentence.

The facts show that the defendant trafficked in dangerous drugs on two different dates.  First, on 12 October 2007, he was stopped by the police outside Kai Shun House, Kai Tin Estate.  A search was conducted on him, upon which three bags of a dangerous drug were found from the pocket of his trousers.  The police arrested him for trafficking in a dangerous drug.  Under caution, he said that he sold the drug only because he had to earn money to provide for his son.  The dangerous drug involved in this offence was 24.46 grammes of a mixture containing 17.79 grammes of heroin hydrochloride and had a street value of approximately $11,520.  The defendant was granted bail then.

Subsequently, on 29 November 2007, a team of police officers conducting an anti-drug operation in Lo Wu saw the defendant talk to a girl aged 9 at the railway station and give her some money.  The two of them then boarded a train together and alighted at Sheung Shui Station.  As they were leaving the station, the girl took a packet of substance from her bag and handed it to the defendant.  After they parted, the police officers intercepted them separately.  The police found dangerous drugs from the pocket of the defendant’s jacket.  Under caution, the defendant admitted that the girl had brought the dangerous drugs from the Mainland to Hong Kong for him.

Thereafter, in the presence of the girl’s mother, the police found $1,400 from the girl’s bag.  In a video-recorded interview, the defendant gave an account of what happened.  He said one Por Chai had instructed him to pay the girl, who would then bring the dangerous drugs from Shenzhen to Hong Kong.  The girl did not know that those were dangerous drugs.  He paid $1,400 to the girl as a reward.  Had he not been arrested, he would have intended to phone Por Chai and place the dangerous drugs in a rubbish bin at a housing estate. 

The drugs involved in this offence were 39.62 grammes of a mixture containing 32.43 grammes of heroin hydrochloride and a total of 998 tablets containing a total of 14.35 grammes of midazolam in five bags.  The retail values of the heroin and the midazolam were, respectively, $26,426 and approximately $32,934.

As far as the defendant’s background and the mitigation are concerned, the defendant is now 55 years old.  His parents have passed away.  He was married once and has a son, but he has been divorced and at present has a girlfriend.  By way of mitigation, Mr. Chan, Counsel for the defendant, submitted that in fact, the defendant’s mother passed away last year and suffered from heart disease and senile dementia before she died.  The defendant, being the eldest son, had to provide for his mother.  In addition, he has to pay $3,000 per month to cover the son’s education expenses despite the fact that he and his wife have divorced and the son lives with his mother.  The defendant received education up to Form 1 and thereafter started to work full-time to help support the family.    He has worked in many different trades such as construction.  He last worked as a tax-driver.

The defendant has previous convictions.  The record shows that he appeared in court on 13 occasions and has 19 criminal convictions, 7 of which involving dangerous drugs and one for possession of apparatus for consuming drugs.  Mr. Chan stressed that the defendant did not have any previous conviction for trafficking in a dangerous drug.  And of course, Mr. Chan pointed out that the most important mitigating factor is that the defendant has frankly admitted his guilt.  Mr. Chan has also handed to me letters of mitigation written to me by the defendant himself and his son.

Drug trafficking is a very serious offence.  According to the sentencing guidelines laid down by the Court of Appeal in Lau Tak Ming, upon conviction after trial, trafficking in 10 to 50 grammes of heroin attracts a starting point of 5 to 8 years’ imprisonment.  Charge 1 involves 17.79 grammes of heroin.  Taking into account the facts of the case, the defendant’s background and all the circumstances, I consider that the appropriate starting point is 6 years’ imprisonment.

The circumstances of Charge 2 are more serious than those of Charge 1.  Charge 2 involves a large quantity of dangerous drugs, and what is more, the defendant committed Charge 2 whilst on bail for Charge 1.  The offence is further aggravated by the fact that the defendant used an innocent and naïve 9-year-old girl to bring the drugs from Shenzhen to Hong Kong for him.  The prosecution has sought enhancement of sentence pursuant to section 56A of the Dangerous Drugs Ordinance.  I shall deal with the application for enhancement later.  This is not something I have to consider when determining the starting point.

The dangerous drugs involved in this offence are 32.43 grammes of heroin and 998 tablets of midazolam.  Instead of separately considering the proper sentence for each of the two types of dangerous drugs, I will adopt a “combined approach”, which means I will consider the dangerous drugs as a whole, although the starting point will be based upon the drug which is more serious in nature, namely heroin.  That this is the correct approach has been confirmed in cases such as Yip Pik Kwai and Yip Wai Yin.  Taking into account the facts of the case, the defendant’s background, in particular the fact that the defendant committed the second offence shortly after the first offence and whilst he was on bail for the first offence, the appropriate starting point is, in my view, 7½ years’ imprisonment.

The defendant has frankly admitted his guilt.  Having considered the defendant’s guilty plea, the mitigation and the documentary information before me, I am of the view that the sentence after discount should be 43 months for Charge 1 and 54 months for Charge 2.

The application for enhancement of sentence was made pursuant to section 56A of the Dangerous Drugs Ordinance.  According to that section, where the defendant admitted as a fact that, in the course of committing the offence of trafficking in a dangerous drug, he intentionally or unintentionally employed, used, persuaded or enticed a minor in the commission of the same offence, then the court may, if it thinks fit, enhance the sentence.

Mr. Chan did not dispute that the facts of the present case satisfy the requirement for enhancement of sentence under section 56A.  His submissions went solely to the issue of the extent of enhancement.  The prosecution and defence have agreed that to date there are only two decided cases, one being a High Court criminal case and the other an appeal from the District Court, in which enhanced sentences were imposed pursuant to section 56A.  In Lam Kam Kwong, a case before the Court of First Instance, the defendant recruited a youngster aged 16 to traffic in nearly 1.5 kg of heroin.  The then deputy judge adopted a starting point of 24 years’ imprisonment and, in view of the substantial prison term to be served by the defendant, decided to enhance the sentence by 1/12, i.e. two years.

In Wong Kwok Hung, the appeal case, the defendant used a 17-year-old young man.  “Ecstasy” was concealed inside the cushion of the stool on which the young man sat at a disco and was subsequently handed to an undercover police officer who went there to purchase the drug.  The trial judge adopted a starting point of 2 years’ imprisonment and then enhanced it by 75 percent.  The Court of Appeal held that the starting point of 2 years was excessive in the circumstances of the case and reduced the starting point to 6 months.  In addition, the Court of Appeal considered it appropriate to enhance the sentence by 50 percent on account of the defendant being the ringleader. 

Mr. Chan submitted that, in terms of the starting point, the present case should fall somewhere between the two aforesaid cases.  He urged me to take into account the totality of the sentence when considering the enhancement and not to impose an excessively long prison term.

The defendant in the present case used a girl who was only 9 years old to bring the dangerous drugs in question from Shenzhen to Hong Kong.  This was plainly done to hoodwink the Custom Officers so that they would not notice a child bringing dangerous drugs into Hong Kong.  As it was, the child successfully brought the dangerous drugs into Hong Kong.  Fortunately, the present case came to light subsequently when the police officers conducted a successful stop and search operation.

The defendant said that he was instructed by Por Chai to use a child, that he was not the mastermind or ringleader, and that he did not recruit this child.  Nevertheless, the fact remains that he used a girl who was only 9 years old to bring the dangerous drugs across the border into Hong Kong.  This is very serious.

Having considered all the circumstances, I take the view that a 50 percent increase in sentence is appropriate.  For a 54-month prison term, an increase of 50 percent, i.e. an increase by 27 months, does appear to be very severe.  In my view, however, heavy, deterrent sentences must be imposed on those who use young children in the commission of offences.  If the defendant had been faced with only one charge, I might, in considering the total sentence, have reduced the extent of the enhancement.  However, the defendant is facing two charges and I will have to make adjustment to the overall sentence.  Therefore, I will not vary this 50-percent enhancement.

I now consider the overall sentence.  The sentence for Charge 1 is 43 months' imprisonment and the sentence for Charge 2 following the 50-percent enhancement is 81 months' imprisonment, making a total term of 124 months.  Having considered the totality principle, I take the view that an overall term of 7½ years (i.e. 90 months) sufficiently reflects the defendant's culpability.  To achieve this purpose, I impose the following sentences:

Charge 1, 43 months' imprisonment; Charge 2, 81 months' imprisonment, 47 months of which is to run consecutively to the sentence for Charge 1, making a total term of 90 months.