HKSAR v. IP TSZ KWAN AND ANOTHER

DCCC 882/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 882 OF 2012

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to three charges. The first charge, charge 1 on the charge sheet was a charge of claiming to be a member of a triad society and that offence was committed on 26 August 2010.

2.  The second charge to which D1 pleaded guilty is charge 3 on the charge sheet which is a conspiracy to rob and that offence was committed on 31 August 2010.

3.  The third charge to which D1 pleaded guilty was charge 7 on the charge sheet and that is a charge of conspiracy to traffic in dangerous drugs, namely ketamine. 

4.  The 2nd defendant pleaded guilty to charge 5 on the charge sheet, a charge of claiming to be a member of a triad society.  The offence is dated 30 September 2010.  The summary of facts admitted in relation to D1 states that between December 2009 and December 2011, the Organised Crime and Triad Bureau of the Hong Kong Police conducted an undercover operation codenamed “Nighstinger”.  During that operation, an undercover police officer who will be referred to as PW1 for these purposes, infiltrated different triad societies to detect crimes and gather evidence against individual persons.

5.  The 1st charge in relation to the 1st defendant of claiming to be a member of a triad society, the facts are that about 2.06 am on 26 August, the undercover officer was working as a cashier at the Circle K Convenience Store on the Ground Floor of the Leung King Commercial Centre in Leung King Estate in Tuen Mun.  The defendant and a man called Ah Man entered the store and chatted with the undercover officer.  The conversation then moved to outside the store where they continued to chat.  During that conversation the undercover officer asked the 1st defendant, “Did you go out tonight?” The 1st defendant replied, “I haven’t gone out for two weeks, previously I went to Tsim Sha Tsui and someone was rude to my big brother.  I follow Wanchai Lo Sun”, which is a triad society.

6.  The third charge of conspiracy to rob, charge 3 on the charge sheet, the facts are that at 1.48 am on 31 August 2010, PW1 and D1 were chatting with each other outside a video games centre on the Ground Floor of Melody Garden Shopping Plaza in Tuen Mun.  A third man called Ah Fai approached them and greeted the 1st defendant.  They chatted outside the video games centre and during the chat they saw a drunken man standing on the street with a female friend.  The 1st defendant suggested to the other two men that they should rob and beat the drunken male.  Ah Fai agreed and the three men then started to follow the drunken man and approach him.  The 1st defendant said that he would be responsible for snatching things.  Ah Fai was to act there to beat the drunken man and PW1 would act as a lookout.  The 1st defendant also instructed PW1 to take the stolen properties.  When they were about to rob the drunken man, they saw three patrolling police officers approaching.  The 1st defendant and Ah Fai immediately gave up their plan and left the scene.

7.  The facts in relation to charge 7, the conspiracy to traffic in dangerous drugs offence, are that at 6 pm on 4 October 2010, PW1 met D1 at a place in Tuen Mun.  D1 said that D2 had an assignment for PW1 to deliver ketamine.  D1 promised to pay the lawyer’s fee if PW1 was arrested.  D1 said a person called Lau Chi-ying known as ‘Lau M’ would contact PW1 later.  Later that same day, Lau M telephoned PW1 and said he would pay PW1 $100 for each delivery of ketamine.  Upon the instruction of Lau M at 7.25 pm that same day, PW1 went to an electric room of a building in North Point.  In a paper box in the electric room there were five large packets of white powder.  Each packet mentioned 7 cm by 5 cm and weighed about 25 to 35 grammes.  There were also five smaller packets of white powder measuring 3 cm by 4 cm, each containing between 5 and 10 grammes of white powder.  PW1 followed the instructions of Lau M and collected one large packet and one small packet from there which he delivered the two packets to customers on the instructions of Lau M.

8.  At 8.04 pm, PW1 met a male in the toilet of a restaurant in Causeway Bay and handed him the small packet of white powder. The male then gave PW1 $400 in cash.  At 8.15 pm, PW1 met Lau M outside the Sogo Department Store and handed the $400 to Lau M and he gave PW1 $200 as a reward.  They then parted. 

9.  At 8.55 pm upon the instructions of Lau M, PW1 met another male at a public housing estate in Ap Lei Chau and handed him a large packet of white powder.  PW1 then called Lau M to report the conclusion of their transaction.  Lau M said that PW1’s job was done and he would find PW1 later.

10.  Later on the same day, D1 met PW1 again and took $80 from PW1 saying the money would be given to himself and D2.  Subsequently in the presence of PW1, D1 handed $40 in cash to D2 and told D2 that the money was part of the reward for the delivery of ketamine by PW1.  D2 received the money and praised PW1.

11.  The operation turned overt on 28 December 2011 and D1 was arrested and he was subsequently identified by PW1. 

12.  In relation to charge 5, to which D2 pleaded guilty, the facts are that at 9.30 pm on 30 September 2010, PW1 was informed by a man known as ‘Recruiter’ who had taken him as his follower in a triad society that arrangement had been made for him to be presented to his triad big brother later known as Fung Wai‑yip, D2.  PW1 was taken to a video games centre, the Luen Bon Automatic Machine Game Centre on the 1st Floor of Wan Tsui Road, Chai Wan and met D2 inside.  D2 was introduced to PW1 as his ‘Ah Kung’, that is his triad big brother.  PW1 then greeted D2 and D2 introduced himself and claimed that he was following the Sha Yu Man’s line of the Wanchai Lo Sun, a triad society.  D2 also asked PW1 to obey the recruiter’s instructions.  D2 then explained to PW1 the structure of the Sha Yu Man’s line.

13.  The 1st defendant has appeared before the court on two previous occasions in January and March of 2008.  In respect of offences of attempted theft and common assault, he was ordered to be detained in a Rehabilitation Centre. 

14.  The 2nd defendant has one previous court appearance but I note it was subsequent to the date of the offence, that was in January 2011, he was fined $500 for fighting in a public place. 

15.  On a previous occasion, I adjourned the case in respect of the 1st defendant so that I could have the advantage of background reports upon him.  The 1st defendant is 23 years of age and is single.  His father left home many years ago and he lives with the other members of his family in what is described as being rather crowded living conditions.  His mother has attended court previously but because of work commitments was unable to attend the court today but his elder sister has attended and also his girlfriend.  The defendant quit school when he was 14 years of age and has held various jobs but he is unemployed at the present time because of these proceedings.  I am told that when he is in employment he does contribute to the family finances.

16.  A letter has been submitted to the court by the defendant in which he says that he now understands how stupid and naïve he was to commit these offences.  He says that he regrets that his selfish actions have caused anxiety to his family, particularly his brother who suffered from long-term diseases and is very worried about him and concerned that he would run into trouble and he asks for leniency.  There is also a letter of support from his elder sister.  She is obviously very concerned about the defendant and promises to assist in the future. 

17.  According to the Probation officer who prepared the background report, he says that the accused came from a broken family and attended secondary school then dropping out after completing Form 2.  It says that he managed to gain employment but his employment was interrupted by his detention in Rehabilitation Centre in 2008.  His work pattern is unstable and he revealed that he has abused drugs after his discharge from Rehabilitation Centre.  He went further astray subsequently having associated with the triad society and committed the offences which he now stands convicted.

18.  I also have the advantage of reports on the 2nd defendant both from the Commissioner for Correctional Services with regards to his suitability for admission to a Rehabilitation Centre and also a Probation report.  The background report says that the defendant was brought up in a family lacking adequate and effective parental supervision with discipline since his father being an illiterate needed to work from dawn to dusk while his mother also worked from time to time to support the family.  The defendant has poor academic performance, especially after entering secondary school and since he had become playful and started to associate with undesirable peers.  He dropped out of school without completing Form 2 completely.  It says that after leaving school he had been most of the time idle and liked hanging in parks, videogame centres and bars with his undesirable peers.  He joined the triad society when he was 17 years of age and indulged in ketamine but claimed that he had abstained from taking ketamine for almost three years and during the bail period he had more taken up with casual work in a restaurant and had contributed towards the maintenance of his mother.

19.  Anybody convicted of triad-related offences will receive some form of custodial sentence.  Triads are by definition criminal organisations preying on the weak and vulnerable members of society.  They cause enormous social disruption in Hong Kong and deterrent sentences must be passed in respect of those who choose to align themselves with triad organisations. 

20.  In respect of the 1st charge to which the 1st defendant has pleaded guilty of claiming to be a member of a triad society, I take a starting point of 6 months for that offence and reduce it to 4 months to reflect his guilty plea. 

21.  As regards the charge of conspiracy to rob, I take the view that a starting point there of 3 years is appropriate and reduce that to 2 years to reflect the guilty plea.  I note in that case that the conspiracy had reached an advanced stage and was called off when suddenly some patrol police officers arrived at the scene. 

22.  As regards the charge 7, the charge of conspiring to traffic in dangerous drugs, I take on board what counsel for the defendant has said in that there is no proof of the actual narcotic content of any drugs that were trafficked in.  However, it is quite clear from the facts admitted by the defendant that he had aligned himself with people who were trafficking considerable quantities of drugs.  I take the view that a starting point of 5 years is appropriate for that offence and reduce it by one-third to reflect the defendant’s guilty plea. 

23.  I have to consider the question of totality.  As regards charges 1 and 3, I order that the sentences run concurrently.  As regards the third charge of conspiring to traffic in dangerous drugs, I order that 26 months of that sentence be ordered to run consecutive to the prison sentences imposed on charges 1 and 3. 

24.  The defendant will therefore go to prison for a total period of 50 months. 

25.  In respect of charge 5, I order that D2 be detained in a Rehabilitation Centre.