HKSAR v. LI SIU WAI

HCCC 421/2017

[2018] HKCFI 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 421 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug, and was committed to the Court of First Instance for sentence.

In sentencing, I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the type and quantity of a dangerous drug involved, background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The defendant was stopped by customs officers when he returned to Hong Kong from the mainland. He tried to flee and put up a struggle, and was eventually subdued, then two brick-like objects, which contained tablets wrapped in paper and plastic material, fell from the defendant’s person.

Under caution, he admitted to be delivering dangerous drugs for a promised reward of $20,000.

I was told that the defendant was 43 years of age at the time of arrest. He has received education up to Form 4, and had worked as a transportation worker. He is married. This is the third time the defendant was convicted for the offence of trafficking in dangerous drugs. The first such conviction was in 2009 for which he was sentenced to two years and six months’ imprisonment. The other such conviction was in 2012, for which he was sentenced to 8½ years’ imprisonment. On six other occasions, he has been convicted for other offences, which included vice-related offences, a travel document offence, and a case of burglary.

In mitigation, learned counsel for the defence, Mr Iu, urged the court to take into account that the defendant pleaded guilty at the earliest opportunity. He also told the court that the defendant committed the offence since he needed money for medical treatment of his mother, who unfortunately had passed away when the defendant was in custody for the present offence.

Mr Iu also urged the court to take into account that the defendant had actively participated in a controlled delivery, though it was not successful, and that the defendant had given a witness statement providing information of some accomplices, though it is accepted that it yielded no fruitful result.

The defence produced letters written by the defendant himself, and his sister. In his letter, the defendant expressed remorse. The sister spoke well of the defendant, and pleaded leniency on his behalf.

The dangerous drug the defendant trafficked in was 714 grammes of a solid containing 504 grammes of heroin hydrochloride. The Court of Appeal suggested in the case of R v Lau Tak Ming [1990] 2 HKLR 370 that a sentence of 15 to 20 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is 400 to 600 grammes.

Having considered the whole circumstances, I do not find there are good grounds to depart from the tariff. I have to take into account that the defendant had taken the dangerous drugs into Hong Kong, and for this reason, the starting point should be enhanced by 1 year. I also have to take into account that this is the third conviction for the offence of trafficking in dangerous drug.

The defendant committed this offence about six months after his discharge from prison for serving the sentence for his last conviction for this offence. This is also an aggravating feature which calls for a further enhancement. Bearing in mind the risk of excessive enhancement, in my judgment, a further enhancement of 6 months is appropriate.

In all the circumstances, I adopt an ultimate starting point of 19 years. The defendant pleaded guilty as soon as the matter was dealt with by a magistrate, and is, for this reason, entitled to a one-third discount. Having regard to HKSAR v Gopal Muthusamy CACC 238/2010, and HKSAR v Jardin Rodela Maningas CACC 278/2011, I am prepared to give the defendant a further discount of 17 months for his assistance to the authority, in particular, his active though unsuccessful participation in the controlled delivery.

Defendant please stand up. For the above said reasons, I sentence to you an imprisonment of term of 11 years and 3 months.