HKSAR v. Lau Pak San

HCCC 363/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 363 OF 2014

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

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COURT: The defendant has been convicted on his own plea on one charge of conspiracy to traffic in a dangerous drug.

The Particulars of Offence provide that on divers dates between 24 March 2014 and 31 March 2014, both dates inclusive, in Hong Kong, the defendant conspired, together with Li Hoi-ming and other persons unknown, to unlawfully traffic in a dangerous drug.

The Summary of Facts admitted by the defendant provides that on 31 March 2014, a 14 year old boy named Li Hoi-ming (“Li”) was observed by a team of police officers to be acting suspiciously in the vicinity of a McDonalds restaurant in To Kwa Wan Road, Hung Hom.

Li was carrying a brown paper bag at the time. Li used his mobile phone on several occasions and was heard saying that he was waiting for someone, and would give them the bag of things when they arrived.

After observing Li for about 20 minutes, the police took action and Li was arrested in To Kwa Wan Road. The brown paper bag he was carrying was searched and was found to contain 20 resealable plastic bags containing a white powdery substance, suspected to be a dangerous drug. When he was cautioned by the arresting officer, Li replied that he was carrying the drugs for someone, but he did not know that person.

In a subsequent video-recorded interview, Li said that he had been induced by a friend nicknamed “Shue Wong” to take part in drug trafficking.

The drugs found on Li were analysed and found to be 250 grammes of a white powder containing 210 grammes of ketamine. The street value of these drugs was HK$29,500.

On 21 May 2014, the defendant went to the Report Room of Hung Hom Police Station, accompanied by his mother, and surrendered himself in connection with Li’s drug trafficking. He was arrested for conspiracy to traffic in a dangerous drug. After being cautioned, the defendant replied:

“Ah Sir, I just wanted to earn some money to relieve my mum’s burden,only then I found ‘Fei Ming’ to help others traffic in some dangerous drugs.”

The defendant was later formally interviewed under caution. In this interview the defendant said, inter alia:

(1) his friends called him “Shue Wong”;

(2) about a week before the arrest of Li, he had met a person whom he did not know well in the To Kwa Wan Recreation Ground. He told this person that he was broke, and needed to earn some money;

(3) that person asked him if he was willing to find someone to deliver dangerous drugs, and he agreed to do so;

(4) he then spoke to Li, a former classmate, who agreed to deliver the drugs. He then passed on Li’s telephone number to an associate of the person he had been dealing with;

(5) he knew that “Fei Ming’s” real name was Li Hoi‑ming;

(6) he did not know what dangerous drug was involved in the transactions;

(7) after Li had delivered the drugs, they would share the cash he received, but he did not know how much this would be; and

(8) he got involved with drug trafficking in an effort to help his mother with her financial problems.

By way of personal background, the defendant is 18 years of age. He was born in Hong Kong in September 1996. He has received education up to secondary Form 1 level in Hong Kong, and completed Form 3 level in mainland China. The defendant had worked as a vehicle beautician, a waiter, salesman and auto mechanic apprentice. He has been unemployed since November 2013.

At the time of arrest, he resided with his mother and a sister. The defendant’s father died in 2004. The defendant is not a drug addict.

The defendant has a clear record. By way of mitigation, Mr Victor Ho on behalf of the defendant urged me to take into account his guilty plea, which showed remorse. Not only that, the defendant surrendered to the police station when requested to assist in this case, and the prosecution case against the defendant depends substantially on his own confession to the police.

I was told that the death of the defendant’s father in an unfortunate accident in 2004 has had a profound effect on him. Moreover, since the father’s death, the defendant’s mother has been burdened with many debts. Being the only son in the family, he committed the present offence with a view to relieve the financial burden of his mother. He was promised $3,000 as a reward by the man who asked the defendant to find a drug courier.

Three mitigation letters have been submitted to the court by respectively the defendant, his sister and his mother. Their contents have been duly noted, but it has to be pointed out that personal circumstances of a defendant has little bearing in a serious case of drug trafficking.

I deal firstly with the appropriate starting point. From the Summary of Facts admitted by the defendant, it is apparent that the conspiracy to which the defendant has pleaded guilty led to the actual trafficking of 210 grammes of ketamine by Li (a 14 year old boy) on 31 March 2014.

It is also apparent that the defendant played a pivotal role, by recruiting Li and introducing him to the drug dealers who had earlier approached the defendant. The defendant was going to share the reward for drug delivery with Li.

In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal has laid down the tariffs for trafficking in ketamine. For trafficking in between 50 to 300 grammes of ketamine, the guideline starting point for traffickers after trial would be 6 to 9 years’ imprisonment.

In my view, following the guidelines in the Hii Siew Cheng case, and taking into account the quantity of the narcotic trafficked as a result of the conspiracy, and being as merciful as I can, the proper starting point for sentence in the present case should be around 7 years and 6 months’ imprisonment.

The defendant is 18 years of age. At the time of the offence, he was 17. The authorities on sentencing have clearly established that age - whether youth or old age - carries little weight when drug trafficking is concerned. Otherwise, as so often does in fact happen, those who are recruited into taking part in trafficking will be the young and the old. Age will usually be relevant only where extreme youth is concerned, and the defendant certainly cannot be said to be extremely young when he committed the offence. Moreover, any sympathy which the court may have on account on the defendant’s youth is offset by the fact that he recruited someone even younger than himself to take part in the actual drug trafficking.

Furthermore, it is no mitigation for the defendant to say that he did not know which dangerous drug was involved in the transactions. In the Summary of Facts, the defendant has admitted that he knew it was dangerous drug which was going to be delivered. It is indeed fortunate for the defendant that the drug involved was ketamine and not heroin or “Ice”, which would have resulted in an even heavier sentence.

Further still, in my view, it makes little difference that there is no direct evidence of the defendant’s knowledge of the actual quantity of dangerous drug that was going to be delivered by Li. Under caution, the defendant told the police that he got involved with drug trafficking in an effort to help his mother with her financial problems, a fact which has been repeated in mitigation today. In order to do that meaningfully, there can be no doubt that the defendant was aware that he was involved in a conspiracy to traffic in a substantial quantity of drugs. In my view, certainly, delivering 210 grammes of ketamine was not beyond the contemplation of the defendant.

In all the circumstances of this case, I consider that 7 years and 6 months’ imprisonment is the proper starting point. From the starting point of 7 years and 6 months’ imprisonment, I shall give the defendant a full one-third discount for his guilty plea and his co-operation with the police. Accordingly, the defendant is sentenced to 5 years’ imprisonment.