COURT: The defendant, Mr Lau Kwan-ling, faces nine charges. With the exception of Charge 1, which is a charge of conspiracy to traffic in a dangerous drug, the rest of the charges are trafficking in a dangerous drug. Charge 2 is an alternative charge of Charge 1. The defendant pleads guilty to Charge 2 to Charge 9. He is found guilty by the court of Charges 3 to 9 on his own plea and admission of the relevant facts. His plea of guilty to Charge 2 is not accepted by the prosecution as full satisfaction of the indictment and the prosecution seeks to secure a commission of Charge 1 thus a trial before a jury takes place.
The defendant is convicted after trial by the jury of Charge 1. As Charge 2 is an alternative charge to Charge 1, the court does not proceed to enter a verdict in respect of Charge 2.
Facts admitted:
Since October 2010, PW1, PC58548, Mr Chan Hing-chuen, had been working undercover in a police operation. He came to know a person by the name of “Ah Choi” who told him on 1 September 2011 that a person nicknamed “Nam Kwa” offered to sell good quality crack cocaine at $1,200 for three packets. “Nam Kwa” was the defendant. Ah Choi asked if PW1 was interested and said his referral fee was $100. After PW1 expressing an interest, Ah Choi took him to meet the defendant in Mongkok the next day.
The defendant handed PW1 a white tissue paper with three small transparent plastic packets inside, containing 0.69 gram of a solid containing 0.62 gram of cocaine. PW1 gave $1,300 to the defendant, who gave $100 to Ah Choi. This is Charge 3.
On 5 September 2011 at 1 am, the defendant telephoned PW1, offering to sell three packets of crack cocaine for $1,300. PW1 agreed to buy. At 1.25 am the same day, the defendant met PW1 at Dundas Street and handed a piece of white tissue paper containing three small transparent plastic packets to PW1. PW1 gave the defendant $1,300. The contents of the three small transparent plastic packets were 0.74 gram of a solid containing 0.57 gram of cocaine. This is Charge 4.
On 21 September 2011 at 8 pm, the defendant rang PW1, offering to sell crack cocaine and PW1 said he wanted six packets. At about 9.10 pm the same day, the defendant met PW1 at Champagne Court in Kimberly Road and handed to PW1 six transparent plastic packets containing 1.49 grams of a solid containing 1.23 grams of cocaine. PW1 gave him $2,600. This is Charge 5.
On 27 September 2011 at 9 pm, the defendant rang PW1, offering to sell crack cocaine at $16,500 per ounce. PW1 agreed and at 10.50 pm the same day they met at Man Wai Street, Yau Ma Tei. The defendant received a Marlboro cigarette box from a man who arrived in a taxi and the defendant gave it to PW1. PW1 gave $16,500 to the defendant. Inside the cigarette box, there was a transparent plastic bag containing 23.95 grams of a solid containing 16.83 grams of cocaine. This is Charge 6.
On 1 February 2012 at 4.15 pm, the defendant rang PW1 offering to sell cocaine. He called PW1 later again, saying if PW1 bought “an orange”, he could get a discount price of $16,500. PW1 agreed and at 5.45 pm the same day, they met at a shop at 45 Bute Street, Mongkok. The defendant handed PW1 a Camel cigarette box with a transparent plastic bag inside, containing 24.18 grams of a solid containing 16.85 grams of cocaine. PW1 handed $16,500 to the defendant. This is Charge 7.
On 22 February 2012 at 5.48 pm, the defendant rang PW1 offering to sell 70 small packets of crack cocaine at $15,000. PW1 agreed and at 7.52 pm, they met at an amusement game centre at 9 Man Wai Street, Yau Ma Tei. The defendant handed PW1 a plastic bag with 70 small transparent plastic bags inside, containing 17.51 grams of a solid containing 14.14 grams of cocaine. PW1 gave the defendant $15,000. This is Charge 8.
On 2 March 2012 at 3.35 pm, the defendant rang PW1 offering to sell an ounce of crack cocaine for $17,000. At 5.50 pm, they met at an amusement game centre in Man Wai Street, Yau Ma Tei and the defendant was accompanied by Wong Yee-ming. They went to a rear staircase. The defendant told Wong to take out the stuff and Wong passed a transparent plastic packet to the defendant, which contained 23.95 grams of a solid containing 19.77 grams of cocaine. The defendant handed the packet to PW1. PW1 paid $17,500 to the defendant, who told Wong that he would pay him his share soon. This is Charge 2.
On 13 March 2012 at 1.23 pm, the defendant called PW1 offering to sell 28 small packets of crack cocaine for $14,000. They later met at a staircase at 205 to 209 Tung Choi Street, Mongkok and the defendant handed over 28 packets to PW1, which contained 6.49 grams of a solid containing 5.35 grams of cocaine. PW1 paid him $14,000 which was marked money. The defendant was arrested shortly afterwards.
The cocaine in Charge 2 to Charge 9 had a street value of $106,844.
Evidence in the trial:
PW1 and Wong Yee-ming give evidence in the trial. The evidence of PW1 is along the line of facts admitted in Charge 2 above, except that he says that Wong gave the cocaine to him directly. Wong gives evidence under an immunity from the prosecution. He says that he was introduced to the defendant by a friend at Man Ying Amusement Game Centre at Ferry Point, early February 2012. On that occasion, the defendant asked if he was interested in making money. Wong said “yes”, but he did not know what the defendant wanted him to do.
On 9 February 2012 at about 2 to 3 am, the defendant called Wong, telling him to go to take the cocaine placed next to a flower bed at Man Sing street in Ferry Point. Wong did so and saw that inside a medicine bag there were 12 packets of cocaine. He took a taxi to a place designated by the defendant, where he, as instructed by the defendant, called the defendant. The defendant told him to wait there and Wong was later approached by a female. Wong gave the bag of cocaine to her and she gave $3,000 to Wong. Wong went to Man Ying Amusement Game Centre where he gave the $3,000 to the defendant and the defendant gave him $400.
Later on the same day at about 5 to 6 pm, the defendant told Wong to go to 13th floor, rear portion of Man Ying Building to get cocaine from the top of an electric switchboard in a meter room. Wong took the cocaine, which was in form of six pallets contained in a medicine bag. As instructed by the defendant, he took the cocaine to the toilet on 1st floor of the New Town Mall in Mongkok and put it next to a rubbish bin. He saw the male buyer and pointed out where the cocaine was and collected $1,800 from him. Wong went to Man Ying Amusement Game Centre and gave the money to the defendant, who gave him $200.
On 15 February 2012, the defendant called Wong and told him to go to collect the dangerous drug from the window frame of the window in the corridor on the 2nd floor of Man King Building in Ferry Point. Wong did so and found that there were 30 pellets of cocaine. As instructed by the defendant, he took a minibus to go to the Citistore in Tsuen Wan, where he telephoned the defendant, who told him to go to the male toilet on first floor of Citistore. Wong met the buyer there and gave him the cocaine and received $9,200 from him. He gave the money to the defendant at Man Ying Amusement Game Centre and the defendant gave him $700.
Wong says that he can remember the two occasions on September 2012 because it was the first time he trafficked dangerous drug for the defendant and he could remember the occasion on 15 February 2012 because when he got off the minibus at Tsuen Wan on that day, he saw several police officers patrolling the street and he was scared.
On 2 March 2012, the defendant telephoned him and told him to go to get a bag of dangerous drug placed next to a flower bed at Man Sing Street and then wait for him at the amusement game centre. When the defendant came into the Man Ying Amusement Game Centre, he went to the buyer who was already inside the amusement game centre. This buyer was PW1.
The three of them then went to the rear staircase in the next building. The defendant told Wong to take out the bag of dangerous drug. He did so and gave it to PW1 directly and PW1 gave a pile of cash to the defendant. They then left the building. After going back to the amusement game centre, the defendant gave $500 to Wong.
Wong says that he remembers vaguely that he had trafficked dangerous drug for the defendant for about 40 to 50 times from 9 February 2012 to 2 March 2012, using the same system as the occasions he has mentioned. He was paid by the defendant on each occasion and he had been paid a total of about $15,000. Wong was arrested by the police on 2 March 2012.
When it is shown to Wong in cross-examination that according to the telephone records of the defendant’s telephone, Wong and the defendant did not have any telephone contact with each other on 9 February 2012 and 15 February 2012. Wong says that he might have talked to the defendant face to face or through another telephone number of the defendant. Wong agrees that he had telephone contacts with the defendant on 27 February 2012, 28 February 2012, 29 February 2012, 1 March 2012 and 2 March 2012, totalling 38 calls.
Criminal record:
The defendant has five previous convictions of which one was trafficking in a dangerous drug and one was possession of a dangerous drug. He was last convicted of three traffic offences on 6 October 2010 for which he was fined a total of $10,000, disqualified from driving for a total of 18 months, ordered to complete a driving improvement course and imprisonment for one month, suspended for 12 months.
Mitigation:
The defendant is aged 26. Counsel for the defendant submits letters of mitigation to court, which are written by the defendant himself, his girlfriend, his parents, his elder sister, his employer and two friends of his. Defendant states in the letter that his father was a hawker with a small income and his mother could not work because of kidney disease. He was the main breadwinner of the family. He had been an apprentice in a flower shop, a kitchen worker in a fast food shop, a waiter, a cashier, a garage apprentice, a lorry driver, a sales manager of a stationery company and a salesman in a pet shop.
In his last job, he earned about $10-odd thousand a month. But he could hardly afford the medical expenses of his mother and household expenses of the family. As he wanted to save money to get married with his girlfriend, he eventually engaged in selling dangerous drugs.
He has been in custody for 1 year 6 months and has enrolled in a number of courses of the open university. He is remorseful for offending the law and asks leniency from the court.
The girlfriend states in the letter that the defendant is a good-natured person who works very hard to support the family and to meet the medical expenses of his mother. The defendant had also tried to save money so that they could get married. The defendant committed the offences because he trusted people too easily and was exploited by undesirable peers. The defendant is now remorseful.
Authors of the other letters all express a good opinion of the defendant, saying that he is a filial son, an honest and hardworking person. The employer says in the letter that he would employ the defendant again on his release from the prison. They all ask for the court to be lenient to the defendant.
Counsel for the defendant also submits to court certificates awarded to the defendant for courses completed by him, such as Introduction to Psychology of the Chinese University and constructions skills, plumbing skills, Chinese and English word processing techniques, English language courses and Chinese spreadsheet and processing techniques of the City Guilds.
The counsel stresses that the defendant had behaved well when he was a child and was not a juvenile delinquent. Although his academic achievement was not good, he had tried his best. He has a good character and is a good-natured person.
Counsel points out that the total amount of cocaine involved in Charges 2 to 9 is 75.36 grams. For the offences with small quantity of cocaine, they fall within the band of two to five years’ imprisonment; and for those with large quantities, five to eight years imprisonment.
In respect of Charge 1, counsel submits that Charge 2 is part of the charge and that although the defendant is convicted of the charge, there is a possibility that the jury has only relied on this transaction. The counsel adds that it should be Wong who had instigated the offences. He further says that although Wong was only aged 14 at the time of the offence, he had a strong build and it was not easy to tell his real age. The counsel asks court to be lenient to the defendant.
Sentence:
According to the case of AG v Rojas [994]2 HKCLR69, the sentencing guidelines for trafficking in cocaine are the same as those for trafficking in heroin hydrochloride, laid down in the case of R v Lau Tak-ming [1994] 3 HKC634. For trafficking in an amount of up to 10 grams of cocaine, the starting point is two to five years imprisonment; and in an amount of 10 to 50 grams of cocaine, five to eight years imprisonment. For an amount of 50 to 100 grams of cocaine, the starting point will be 8 to 12 years imprisonment.
The quantities of cocaine involved in Charges 3 to 9 vary from less than 1 gram to about 16 grams. It is submitted in mitigation that the defendant committed the offences because of economic reason. This of course can never be an excuse to offend the law and it is certainly not valid mitigation.
It can be seen from the mitigation letters and academic certificates submitted to the court that the defendant has put efforts to better equip himself and that the family members, friends and the employer of the defendant all see him as a hardworking and good-natured person. But in offences of such a serious and socially abhorrent nature, all these count very little, if any, towards mitigation.
On the contrary, there is an aggravating factor that the defendant committed these offences from September 2011 to March 2012, which was a span of about six months. These offences no doubt would have continued if not for the arresting action taken by the police in the operation.
The court is of the view that the starting point in the sentencing guidelines should be enhanced to reflect such aggravation. The court therefore adopts the following starting points for these offences.
Charge 3 - 2 years 6 months imprisonment.
Charge 4 - 2 years 6 months imprisonment.
Charge 5 - 2 years 9 months imprisonment.
Charge 6 - 6 years imprisonment.
Charge 7 - 6 years imprisonment.
Charge 8 - 5 years 6 months imprisonment.
Charge 9 - 4 years imprisonment.
Giving credit for the defendant’s plea of guilty the court sentences him as follows:
Charge 3 - 1 year 8 months imprisonment.
Charge 4 - 1 year 8 months imprisonment.
Charge 5 - 1 year 10 months imprisonment.
Charge 6 - 4 years imprisonment.
Charge 7 - 4 years imprisonment.
Charge 8 - 3 years 8 months imprisonment.
Charge 9 - 2 years 8 months imprisonment.
The difficult part in this sentence exercise is the sentence for Charge 1. Wong in his evidence only gives details of four occasions when he delivered dangerous drug for the defendant. Apart from the last occasion which involved 19.77 grams of cocaine, there is no chemical evidence of how much cocaine was involved in the other three occasions.
According to his evidence, he received from the buyers $3,000, $1,800 and $9,200 respectively on these three occasions. In the first set of admitted facts, it is stated that in March 2012, the price of 1 gram of cocaine was $1,144. Although these three occasions occurred in February 2012, the street price of cocaine should not have varied too much. Accordingly, the amount of cocaine involved in these three occasions would be about 2.5 grams, 1.5 grams and 8 grams. Of course the narcotics content would be less and would only be about 80 per cent of the weight of the dangerous drug.
Although the last occasion involved a relatively large amount of cocaine, Wong says in evidence that he believe that the defendant took part himself in that transaction because it involved a large amount of cocaine and the defendant did not trust him. This shows Wong did not normally handle such a large quantity of dangerous drug.
Wong further says that he vaguely remembers that he had delivered dangerous drug for the defendant for 40 to 50 times between 9 February 2012 and 2 March 2012 and had earned about $15,000. But his evidence in this aspect is far from being certain. A further complication is that it is not known how much of his evidence is accepted by the jury. The jury may accept that there were 40 to 50 occasions of trafficking or less.
The offence of conspiracy is of course completed once the agreement is reached. But in sentencing, the court should also take into account the overt acts which had been carried out. The four occasions of trafficking mentioned by Wong in his evidence involved a total of about 28 grams of cocaine.
The conspiracy is an open-ended one. The amount of cocaine involved in Charge 1 is no doubt much more than this amount, even giving the defendant the benefit of doubt that the jury does not accept all the 40 to 50 occasions.
An aggravating factor in the conspiracy is that the defendant is the prime mover and he exploited Wong, who was only 14 years of age. Although counsel for the defendant submits that Wong has a strong build and it is not easy for people to tell his age, the court does not agree to such a submission. The court has seen Wong giving evidence in court and is of the view that although a person may not be able to tell the exact age of Wong, they should have no difficulty to see that he is of a very young age.
Taking all these into consideration, the court adopts a starting point of nine years imprisonment for Charge 1. As the defendant has pleaded guilty to trafficking in dangerous drug in Charge 2, which involved 19.77 grams of cocaine and is part of Charge 1, the court is prepared to give him a discount. The court sentences him to 7 years 6 months imprisonment for Charge 1.
In considering the overall sentence which should be imposed, the court should not lose sight that the defendant committed all these offences within a short period of time. His culpability is therefore higher than when he trafficked all the dangerous drugs involved in all these charges in one transaction. The court has also pointed out the aggravating factors in the conspiracy charge.
Taking all these into consideration, the court is of the view that the overall culpability of the defendant in the present case should attract a sentence of 9 years 2 months imprisonment. The court therefore orders the sentences of Charge 1 and Charges 4 to 8 to run concurrently, but consecutively to that of Charge 3, making a total of 9 years 2 months imprisonment. This is the sentence the defendant is to serve.