HKSAR v. LAU KIM FUNG AND ANOTHER

HCCC 320/2016

[2018] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 320 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The defendants, D1 and D2, were committed for trial on 15 July 2016, for the following offences: Count 1 (against both defendants): trafficking in 17.18 kilogrammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and 2.165 kilogrammes of ketamine. Count 2 (against D1 only as alternative to Count 1): trafficking in 1.95 kilogrammes of ‘Ice’ and 1.81 kilogrammes of ketamine. Count 3 (against D2 only as alternative to Count 1): trafficking in 15.23 kilogrammes of ‘Ice’ and 355 grammes of ketamine.

On 17 August 2016, when the case came up for listing, the trial was fixed to commence on 24 November 2017, with six days reserved. At the pre-trial review on 7 September 2017, D1 indicated a “not guilty” plea. On the other hand, D2 indicated a plea to his alternative charge which was agreed to by the prosecution.

On 24 November 2017, which was the first day of the trial, D1 first indicated to the court a plea to his alternative charge which was agreed to by the prosecution. In the event, D1 was convicted on his own plea of Count 2 and D2 of Count 3. The prosecution offered no evidence against either defendant on Count 1. By the joint application of the prosecution and the defence, the sentence was adjourned so as to enable the police to conduct further investigation.

Today I was told that the police have yet to complete their investigation. Mr Ching and Mr Tse, respective counsel for D1 and D2, asked for a further adjournment so that the court may wait and see if anything may come out of the investigation. On the other hand, the prosecution asks that the defendants be sentenced without further ado and submits that if anything emerges in the future which may be helpful to the defendants, the defendants may still seek a reduction of sentence on appeal.

I have considered counsel’s submission as to whether a further adjournment should be granted. Bearing in mind that the offences occurred and the defendants were arrested more than two years ago, on 15 January 2016, and that there has already been a seven-month adjournment since the defendants’ guilty plea in November 2017, having regard to what was said by the Court of Appeal in R v SZE Tak Hung [1991] 1 HKLR 109 and 112 that it would not seem right to delay the normal course of criminal proceedings indefinitely, I have come to the view that the defendants should be sentenced right away.

Brief facts

The facts, as agreed by the defendants, are simple. In the morning of 15 January 2016, the defendants were seen arriving at Clearwater Bay Peninsula in a private vehicle, D2 being the driver and D1 the passenger. Both of them then alighted from the private vehicle carrying travel bags in their hands. When the defendants reached the entrance of the flat in the development they were intercepted by ambushing police officers.

The dangerous drugs (the subject matters of the two alternative counts to which the defendants pleaded guilty) were found in the travel bags respectively carried by the defendants. The then estimated retail value of the dangerous drugs found in D1’s possession was $1,390,930, whilst that of the dangerous drugs in D2’s possession was $5,029,720.

D1’s background and records

D1 is aged 43. He is single. He was educated up to Form 3. He has a conviction of ‘drink driving’ in 2004 and a conviction of trafficking in 2010. For the later conviction he was sentenced to 4 years’ imprisonment.

D2’s background and records

D2 is aged 31 and is also single. He was educated up to Form 1. Between 2001 and 2014, he has 10 court appearances with 54 convictions, most of which were theft and triad-related offences. None of his previous are similar to the present case.

Sentencing approach

I note that the maximum sentence for trafficking on the indictment is life imprisonment. The Court of Appeal has said that the starting point for the offence of trafficking is to be determined primarily by the quantity of the dangerous drug concerned; that the mathematical starting point should not be departed with without reasons and that an accused was a courier is not a sufficient reason for departing from the mathematical starting point, see HKSAR v Leung Kwai Ping & Anor No. 2 [2003] 2 HKC 575 and HKSAR v Conde Nassou CACC 427/2014.

When a charge of trafficking concerns more than one type of dangerous drugs the court may adopt what is termed as the ‘combined approach’ when considering sentence and also take into account the three means of cross-checking described in HKSAR v Chan Luk Yeong CACC 318/2013, namely, the ‘absurdity test’, the ‘conversion test’ and the ‘ration test’. Furthermore, trafficking in two different and serious types of dangerous drugs can be an aggravating factor, in that the trafficker could then be able to reach a wider market, HKSAR v Ramirez [2015] 1 HKLRD 966, at para 19.

D1’s sentence

In HKSAR v Tam Yi Chun [2014] 3 HKLRD 651, as regards trafficking in ‘Ice’ of 600 grammes and above, the Court of Appeal referred to the same sentencing tariffs as were described in HKSAR v Abdallah [2009] 2 HKLRD 437, for those quantities of heroin. Thus trafficking in 1.95 kilogrammes of ‘Ice’ alone would attract a starting point of about 23 years and 10 months’ imprisonment.

Based on the tariff laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in over 1,000 grammes of ketamine alone will attract a starting point of more than 14 years. I note also that in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, considered in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, it was said that the appropriate starting points for trafficking in 2,000 grammes to 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years’ imprisonment. I am alive to the fact that Sin Chung Kin and Chow Yau Ching do not lay down any new guidelines. By reference to the aforesaid case authorities, I consider that the appropriate starting point for trafficking in 1.81 kilogrammes of ketamine alone would be about 16 years’ imprisonment.

Of the two types of dangerous drugs concerned in Count 2, I consider ‘Ice’ to be the more significant one both in terms of quantity and potency. Having adopted the combined approach mentioned above and bearing in mind that the offences entailed trafficking in both ‘Ice’ and ketamine, I am of the view that the appropriate starting point for discount should be one of 24 years’ imprisonment.

The only significant mitigating factor which could reduce D1’s sentence is his plea which took place on the first day of the trial. However, in view of the fact that the trial dates were fixed in August 2016, which was before the handing down of the judgment of the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, on 2 September 2016, I am prepared to grant D1 a discount of one-third in accordance with the former practice, see paragraph 236 of that judgment. Ms Mohamed, counsel on fiat, has no quarrel with this approach. Therefore, D1 is sentenced to 16 years’ imprisonment on Count 2.

D2’s sentence

In view of the respective sentencing tariffs, trafficking in 15.23 kilogrammes of ‘Ice’ alone would attract a starting point of about 30 years’ imprisonment, whilst trafficking in 355 grammes of ketamine alone will attract a starting point of 9½ years.

Similarly, of the two different types of dangerous drugs concerned in Count 3, I regard ‘Ice’ as the more significant one both in terms of quantity and potency. Moreover, the quantity of ketamine in Count 3, though in itself substantial, pales into insignificance in view of the huge quantity of ‘Ice’ concerned. Looking at the matter in the round I adopt 30 years’ imprisonment as the starting point of this charge.

Similar to the case of D1 in accordance with the former practice before the revision made in HKSAR v Ngo Van Nam, which made very little distinction between an accused who indicated an earlier plea and another who only pleaded guilty on the first day of the trial, I also grant a one-third discount to D2 for his indication of plea which was given after listing but before trial.

Mr Tse suggested that D1’s eventual plea may have been in part attributed to the stance taken by D2. However, after this Court enquiry with the prosecution and Mr Ching, this suggested mitigation advanced on behalf of D2 is not made out.

Apart from D2’s plea, at present there is no mitigating factor which may further reduce his sentence. Therefore, D2 is sentenced to 20 years’ imprisonment for Count 3.