HKSAR v. LAM WAI KIN AND ANOTHER

HCCC 208/2022

[2024] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 208 OF 2022

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REASONS FOR SENTENCE

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1.  The defendants were convicted after trial of one joint count of trafficking in dangerous drugs. D1’s conviction by the jury was unanimous, while D2’s was by a majority of 5 to 2.

2.  Particulars of the count are that, “LAM Wai-kin and KWAN Chung-yin, on 25^th November 2020, at Tai Tung Carpark, between Lamppost Nos. AC4619 and AC4621, Tsing Hung Road, Tsing Yi, New Territories, in Hong Kong, together with a person named ‘Kim Chai’, unlawfully trafficked in a dangerous drug, namely 16,761.30 grammes of a solid containing 13,380.42 grammes of cocaine.”

SUMMARY OF FACTS

3.  At around 1:25pm on the charge date, D2 drove into Tai Tung Carpark in a white Audi and parked it next to a silver BMW with plate number LT2329.  D1 got out of a Toyota 7-seater WS 6983 that he was in and walked towards the Audi.  D1 and D2 moved to the boot of the BMW.  While they were standing there, Police officers laying in ambush revealed themselves and intercepted both.

4.  A purple suitcase with about 11kg of cocaine was found from the boot.  Its combination lock was opened with the code provided by D1.

5.  Also in the boot were the rest of the cocaine in the charge, together with one electronic scale, a number of transparent re-sealable plastic bags, a spoon, a pair of scissors and a pair of gloves.  

6.  The defendants were arrested and made admissions under caution.  D1 claimed a “Kam Chai” told him to pass the ‘coke’ in the boot to the driver for distribution.  D2 claimed he was just there to get half a kilo of ‘coke’ from D1, that her girlfriend who came with him in the Audi had nothing to do with it.

7.  D1’s WS6983 was searched and a total of $575,500 in cash was found.  $145,000 was inside a waist bag placed between the front armrests.  $30,000 was inside a black recycle bag and $400,500 was inside a black paper bag, both found from the glove compartment of the front passenger seat.

8.  D2’s Audi was searched and $33,000 cash was found inside the glove compartment.

9.  The defendants were searched.  The BMW car key was found on D1.  He was wearing a single transparent glove on his right hand.

10.  As for D2, a piece of paper was found from his trousers pocket.  According to what D2 said in his video recorded interview, it contained information for drug deliveries, with the nicknames, quantity of cocaine, phone numbers of the customers, addresses and mode of verification of identity, which included the serial number of a bank note, to be shown by the customer in order to take delivery of the drugs.  

11.  The exact same information is also written down on a page in an exercise book that was found on the ground at the rear of the BMW.  According to what D1 said in his video recorded interview, he was the person who copied down the information onto a page in the exercise book.  The information was provided to him by “Kam Chai” on the morning of the arrest when they met at a restaurant.  D1 copied the information down on the top of one page, and then duplicated the information on the bottom of that same page.  He was the person who had torn off the bottom half and had given it to D2 so that D2 would be able to make the deliveries accordingly.  This was confirmed by D2 in his own video recorded interview.  

12.  In addition to the above, D1 admitted in the video recorded interview that he met Kam Chai about 5 to 6 years ago, and when Kam Chai heard from D1 that he needed money, Kam Chai asked if he was interested to take part in something related to dangerous drugs.  D1 said yes.  On the morning of the arrest Kam Chai asked to have tea with him and they met in a restaurant in Hung Hom.  D1 said that in a phone call earlier on, Kam Chai had asked him to find a driver in, and that D1 will be paid $400,000 up front, for each block or kilogram he would be paid $20,000 as a bonus.  Kam Chai told D1 to decide how to split the money with the driver.  Kam Chai told D1 to bring the exercise book mentioned above to the restaurant.  

13.  D1 claimed that Kam Chai paid $430,000 at the restaurant, and he was sort of given a tip of $30,000, because he was helping Kam Chai in dangerous drugs activities. The total amount was remuneration for this job.  D1 claimed Kam Chai told him that the total amount was to be set off, to be deducted when there’s more, and there will probably be another occasion next time.  Kam Chai did not mention how many kilograms of cocaine was involved this time.  

14.  At the restaurant, Kam Chai showed the paper with the orders to D1 and told him to copy them down, which D1 did.  Kam Chai told D1 to go to the carpark and find a silver BMW with plate number LT2329, and that the cocaine were already in the boot.  Kam Chai gave D1 the car key to that BMW.  Kam Chai told D1 that he will need to take 6 blocks because there were 6 orders that day, and that there are more than 6 blocks in the BMW.

15.  D1 claimed he contacted D2 on the morning of the arrest as well.  D1 said he had known D2 since around early 2020 and knew he was also in need of money.  He found D2 reliable and so he wanted D2 to be his driver for the delivery of the cocaine to customers.  D1 told D2 that he will be paid $10,000 for each order, and this amount was decided by D1 himself.  D1 at first told D2 there will be 3 orders, but later added to 5.  D1 did tell that the deliveries were to be cocaine.  He told D2 to meet at the carpark at 1pm, and to park next to the LT2329 BMW.

16.  D1 himself arrived at around 1pm, and parked his WS6983 diagonally opposite the BMW.  D2 arrived about 10 minutes later.  D1 got out and went to open the driver door of the BMW and then the boot.  He saw the purple suitcase and the blocks of drugs in the boot and thought they were probably cocaine.  D2 also went to have a look into the boot.  D1 handed over the torn off paper to D2.  D2 had a look and then kept it.  D1 said he then closed the boot of the BMW and then Police showed up.  D1 claimed that he knew the dangerous drugs in the car were cocaine, although he did not know there was so much of it, and that he was going to arrange for the distribution or delivery of the cocaine.  D1 explained he was wearing a glove to prevent leaving fingerprints.

17.  In relation to D2’s video recorded interview, in gist, D2 confirmed he was arrested and cautioned at scene and that he did say he was just getting half a kilo of ‘coke’ from a “迪高” and it did not concern his girlfriend.  D2 explained 迪高is D1 and talked about how long they had known each other, and about how D1 called to ask him to make a total of 5 orders of cocaine delivery, which was why he went to Tai Tung carpark.  D1 promised a reward of $10,000 per order of 1 kilogram.  D1 told him to look for LT2329.  D2 parked his Audi next to it and then called D1.  D2 said he saw D1 used a key to open the boot of the BMW LT2329, and then he saw a suitcase inside.  Outside the suitcase was a few packs of cocaine.  D2 talked about D1 handing an “order paper” to him, how he put it into his trousers pocket after reading it.  Then D1 told him to open the Audi boot so that the cocaine order for that day can be moved into the Audi.  D2 said as at the first phone call he received from D1, D2 had known that he was going to be delivering dangerous drugs.  D2 talked about how he would follow what was written on the paper to call the customers for each order, to ask for the delivery address.  This was the first time D1 engaged him to make such deliveries.

18.  D2 confirmed half a piece of torn off paper was found from his right trousers pocket, and that D1 gave it to him at the carpark when the boots of the vehicles were opened.  It was not torn at that time, and D1 tore it off in front of D2, saying that they were today’s orders.  D2 then explained how to read the contents of the paper to the officer as mentioned above.  

19.  D2 talked about using the Samsung phone to communicate with D1.  He explained that the WhatsApp message when he said ‘開工 (to work)’ meant to deliver cocaine for D1.  

20.  D2 said he did not know to whom LT2329 belonged.  He said that day when at the rear, D1 was to give him some cocaine, D1 told D2 to open the boot of the Audi to transfer the cocaine into the Audi.  D2 said he will be driving the Audi to make the deliveries to the customers.  

21.  The jury was directed to consider whether the prosecution has proved that D1, D2 and Kam Chai had the common intention to traffic in all of the cocaine found inside the boot of the LT2329 BMW.  The jury had by way of the verdicts shown that they are sure that the defendants did share such a common intention.

PREVIOUS CONVICTIONS

D1

22.  D1’s first conviction was when he was 12 and put on probation for one charge of burglary in 1998.  He was next convicted of theft when he was 15 and sent to Reformatory School.  5 years later he was sentenced to Rehabilitation Centre for theft.  Then in 2008, he was sent to prison for a total of 8 months for theft and transferring travel document etc. to another without reasonable excuse.

23.  In the same year, he was sentenced to 3 months’ imprisonment for aiding and abetting using an identity card relating to another person, suspended for 3 years.  He was in breach of that suspended sentence, and the 3 months’ sentence was added to his 14 months’ sentence in 2011 for using a false instrument, theft, driving without license, and using a motor vehicle without 3^rd party insurance.

24.  There was a break of about 7 years until D1 was convicted in November 2018 for 5 charges of theft, 5 charges of using a false instrument, driving without valid license, using motor vehicle without 3^rd party insurance, and speeding.  He was given a total term of 52 months’ imprisonment.  

25.  While he was still serving that sentence, he was convicted in May 2019 for another theft and sentenced to 6 months’ imprisonment with 2 months to be served consecutive to the sentence that he was serving.

26.  He committed the present offence on 25^th November 2020, being slightly more than 5 months after he was last discharged from prison on 6^th June 2020.

D2

27.  D2 was first convicted of one charge of theft from vehicle and put on probation in 2003 July, 10 days before he would turn 28.  

28.  He was next convicted in 2004 for blackmail, theft, making off without payment and criminal intimidation and sentenced to a total of 29 months’ imprisonment.  

29.  He committed his first drug related offence in November 2006.  For one charge of possession of dangerous drugs and one of possession of equipment fit and intended for using dangerous drugs, he was sentenced to 4 months’ imprisonment.

30.  There was then a break of about 6 and a half years until he was convicted in 2013 for driving an unlicensed vehicle, using a vehicle without 3^rd party insurance and using a false instrument, and sentenced to 2 months’ imprisonment.

31.  In 2014, he was convicted of taking a conveyance without authority, using vehicle without 3^rd party insurance, driving while disqualified, and driving without a license, and sentenced to a total of 4 months’ imprisonment.

32.  In March 2016, he was sentenced to a total of 7 month’s imprisonment plus fines for a total of 10 traffic related offences.

33.  In December 2016, he was sentenced to 20 months’ imprisonment for possession of dangerous drugs.  

34.  There were yet another set of driving while disqualified and using a motor vehicle without 3^rd party insurance convictions in 2018 when he was imprisoned for 6 months.  

35.  He was then sentenced to a total of 24 month’s imprisonment in the District Court for burglary, driving while disqualified, using a vehicle without 3^rd party insurance in May 2019.

36.  He committed the present offence on 25^th November 2020, being about 10 months after he was last discharged from prison on 10^th January 2020.

D1’S BACKGROUND AND MITIGATION

37.  D1 is 39.  He was born in mainland China in 1985 and immigrated to Hong Kong in 1988.  He was educated up to Form 2 level.  Prior to his present remand, he was cohabitating with his girlfriend and their now 14 year old son in a public housing unit in Shatin.

38.  Mr. Wong tells the court that the girlfriend had since left D1.  Their son would visit the defendant monthly accompanied by family friends.  Father and son maintain a good relationship.  

39.  D1’s father passed away years ago.  D1 supports his mother who is in her sixties and living alone in a public housing estate in Shek Lei.

40.  As mentioned by D1 in this evidence in court and adopted by Mr. Wong in his mitigation submissions, D1 never held a normal job since his 20s, and he used to work at illegal mahjong gambling establishments.

41.  Mr. Wong concedes in his written submissions that D1’s role was more than a mere courier of the drugs.  D1 had recruited D2, gave him instructions as to delivery of the drugs, and was to pay D2 from the money D1 received from Kam Chai.  Mr. Wong rightly pointed out that D1 can be regarded as a ‘manager or organizer’ as described in the case of HKSAR v Herry Jane Yusuph (referred to below), and therefore expects the court to enhance the arithmetical starting point accordingly.  

42.  Mr. Wong also rightly pointed out that Kam Chai was the person who was higher up the trafficking hierarchy, being the person who arranged for all the drugs to be placed in the BMW, who recruited and paid D1.

43.  As for D1’s previous convictions, Mr. Wong pointed out that none was drug related, although the present offence was committed not long after his last discharge from prison.

D2’S BACKGROUND AND MITIGATION

44.  D2 is 49, was 45 in 2020, educated up to Form 3 level and had been working in the cleaning industry since.  As disclosed by D2 in his evidence in court, he also runs an online car trading operation.

45.  Mr. Tze submits in mitigation that D2 was a simple courier of the drugs, that all the arrangements were made by D1 or Kam Chai without D2 having any control, and him only working under the directions given to him by D1.

46.  As for D2’s previous convictions, Mr. Tze submits that the only 2 drug related convictions date back to 2006 and 2016, and the remaining convictions were mostly traffic related involving vehicles.  He urges the court not to enhance D2’s sentence on the basis of being a habitual offender.

SENTENCE

47.  The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.  

APPLYING HERRY JANE YUSUPH

48.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1] are applied as follows.

Step 1: The applicable guideline tariff bands

49.  For 13,380.42 grammes of cocaine, the applicable guideline tariff band is that of 26 to 30 years’ imprisonment.

Step 2: The defendants’ role and culpability

In relation to D1

50.  D1 had direct contact with the person who was in a position to arrange for such a large quantity of drugs to be distributed.

51.  D1 was paid a substantial advance payment for dealing with the drugs.  Assuming D1 told the whole truth in his video recorded interview, he was being paid $20,000 per kilogram of the cocaine that he was going to distribute, making a substantial profit.

52.  D1 was the person who was able to decide how much to pay to the courier of the drugs.  It is obvious that D1 was not a mere courier or storekeeper for the dangerous drugs in LT2329.  His role is the manager or organizer of those who are dealing in, or distributing, drugs on his behalf, as referred to in paragraph 65 of the judgment of Herry Jane Yusuph.  

In relation to D2

53.  According to the admitted facts, at the then average retail price of HK$1,304 per gramme, a delivery of 1000g of cocaine would cost the buyer at least $1.304 million.

54.  D2’s deliveries might very well be done on the streets, but common sense would suggest that the buyer taking delivery of 1 kilogram or 750g of cocaine would unlikely be the end user of the drugs.

55.  Therefore, based on the quantity of each order of the cocaine that D2 was to deliver, one reasonable inference is that D2 was a courier employed by D1 to make the deliveries to other wholesalers and not directly to the end user.  D2 might not have been a direct trafficker referred to in section F.3.6.2 of the judgment in Herry Jane Yusuph, but the less culpable courier.  D2 is to be sentenced on the inference that is to his favour.  

Step 3: The relevant band within the guidelines

56.  An arithmetical application of the guidelines would lead to a notional starting point of 29 years and 5 months’ imprisonment for all the cocaine in this case.

57.  Based on my finding of D1’s role and enhanced culpability, I would increase the notional starting point by 7 months, taking it to 30 years.  

58.  Based on my finding of D2’s role as a mere courier, I adopt the notional starting point of 29 years and 5 months’ imprisonment.

Step 4: Aggravating factors

59.  D1 and D2 each committed the present offence within a short time after their last discharge from prison.  Both are habitual offenders.  

60.  For these aggravating factors, I will enhance each of their sentence by 6 months.  

61.  The post enhancement sentence for D1 is, therefore, 30 years and 6 months; and that for D2 is 29 years and 11 months.  

Step 5: Mitigating factors

62.  The defendants were convicted after trial.  They each challenged the admissibility of their confessions with no saving of court’s time and resources.  Their personal circumstances are unremarkable.  There are no mitigating factors.

Step 6: Totality

63.  In the case of HKSAR v Lee Ming Ho [2024] HKCA 150; CACC 130/2019, the Court of Appeal provided further guidance on the application of the Herry Jane Yusuph guidelines.  

64.  In relation to Step 6 on totality, the Court clarified as follows:

“85. It will be seen that the Court in Herry Jane Yusuph was not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one for the defendant concerned: it was warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality. The context of Step 6 was ‘totality’, where more than one count is involved, or more than one aggravating feature is engaged. Many sentences of far shorter length may be considered overbearing or crushing for certain defendants, but that is not a reason to reduce a sentence otherwise dictated by the sentencing guidelines. If that were the case, it would promote inconsistency and unnecessary and unhelpful comparisons between sentences by defendants and appellants in drug trafficking cases. As observed by Doyle CJ in the Supreme Court of South Australia decision in R v E, AD80:

‘Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.’”

65.  With this clarification of Step 6 in mind, despite the fact that the sentences for D1 and D2 might very well have a crushing effect on them, I find that they are the proper sentences to impose upon the proper application of the guidelines.  I find that in the circumstances, the sentences are fair, just and balanced.  As such, there is to be no reduction of sentence under this step.

FINAL SENTENCES

66.  The final sentence for D1 is 30 years and 6 months’ imprisonment.

67.  The final sentence for D2 is 29 years and 11 months’ imprisonment.