HKSAR v. Lau Man Kei

HCCC 278/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 278 OF 2015

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

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COURT: The defendant was originally charged with the following two counts: the 1st count was manufacture of a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and the 2nd count is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the same ordinance.

The defendant pleaded not guilty to the 1st count but pleaded guilty to the 2nd count. I duly convicted the defendant on the 2nd count after he admitted to the summary of facts. The 1st count was left on file and not to be proceeded with without order of the court.

Summary of facts

On the day in question, the police mounted an anti-narcotics operation outside Block A of Wai Yip Garden in Yuen Long. The defendant alighted from a private car and was stopped by the police when he walked to the said building. No contraband was found on his person upon search. Nothing suspicious was found inside the car either. The defendant was then taken back to his home which was a flat on the ground floor of the said building for a search under a search warrant. Inside the bedroom the police found on top of the drawers of a wardrobe the following:

- one Nokia phone;

- a plastic box containing 0.07 grammes of a mixture containing heroin hydrochloride and a $20 banknote;

- one box containing a fork, a brush and two sets of electronic scales all with traces of heroin;

- a blender containing 0.07 grammes of a mixture containing heroin hydrochloride and two blender cups.

Using keys from the defendant, the drawers of the wardrobe were searched. Inside two drawers, the following were found.

The first drawer: three bags were found inside a black bag, one contained 105 grammes of a mixture containing 64.9 grammes of heroin hydrochloride, two bags containing a total of 1125 grammes of a powder containing caffeine, four resealable bags containing a total 575 packets containing 132.1 grammes of a mixture containing 81.7 grammes of heroin hydrochloride, a plastic box containing 9.75 grammes of a mixture containing 5.92 grammes of heroin hydrochloride, a hammer with traces of heroin, a toolbox containing a paper cutter, three clamps, a toothbrush, a metal clip, a calculator, a marker pen, all with traces of heroin.

In the second drawer, a bundle of plastic bags were found and also six masks.

Under arrest, the defendant said under caution that he was the only one who had the keys to the wardrobe. All the dangerous drugs and tools belonged to him. His wife and children who were inside the flat when the police entered did not have anything to do with the drugs or the tools.

In a subsequent video-recorded interview, the defendant said he was responsible for repacking the dangerous drugs but not selling them. Upon instructions from his boss nicknamed “Ah B”, he picked up the dangerous drugs and money at one designated place and after repacking the dangerous drugs he delivered the dangerous drugs to another designated place. Ah B paid him 20 to 30 thousand dollars per month. He repacked the dangerous drugs by mixing every 28 grammes of heroin with 1 gramme of cutting agent. He then weighed the mixture and packed them into small packets. The tools seized were used to mix and blend the heroin with the cutting agent.

The total amount of dangerous drugs seized was 246.99 grammes of a mixture containing 152.52 grammes of heroin hydrochloride.

The estimated market retail value was $199,074.

Background and mitigation

The defendant is a 44-year-old male born in Hong Kong. He is divorced and prior to his arrest he was living with his girlfriend, their son and his girlfriend’s granddaughter. He was educated up to form one level and worked as a decoration worker earning 20 to 30 thousand dollars per month. He had to support his aged parents in their 80s by giving them $4,000 per month.

I was informed by defence counsel, Mr Wong, that the defendant committed the present offence even though he was already earning 20 to 30 thousand dollars per month because of his own drug addiction and also having to buy drugs to relieve his pain. The defendant’s pain was as a result of his medical condition which involved problems with his lungs and also his spine. I was given two medical reports to support that. Mr Wong frankly admitted that the defendant’s medical condition was not life threatening and it did not have any basis to ask for a lighter sentence on account of the defendant’s health.

The defendant was not a man with a clear record: 15 previous ranging from unlawful possession, theft to wounding with intent and burglary. He had one previous drug-related offence, that is possession of a dangerous drug for which he was sentenced to 12 months’ imprisonment in 2006.

The defendant’s girlfriend wrote to me asking for leniency. I do not intend to reiterate the contents, suffice it to say that according the girlfriend the defendant was a responsible and hardworking family man. She also disclosed the hardship she and her family faced after the defendant was incarcerated. Again, Mr Wong admitted that the family situation of the defendant does not amount to special or humanitarian grounds for me either not to follow the guidelines or to give the defendant a greater reduction. Mr Wong submitted that the greatest mitigation is the defendant’s plea which saves a lot of the court’s time. The defendant himself, through his counsel, also expressed his true remorse, and particularly towards his girlfriend.

Trafficking in a dangerous drug is a serious offence. A person convicted of this offence under indictment is liable to be fined $5 million and to imprisonment for life.

The Court of Appeal in the case of Lau Tak Ming set down guidelines for sentencing traffickers trafficking in heroin hydrochloride. The amount involved here is 152.52 grammes. According to the guidelines, for an amount between 50 to 200 grammes the appropriate starting point is between 8 to 12 years.

When I consider the appropriate starting point, I bear in mind that the defendant was not a mastermind. On the other hand, the defendant does not merely act as a courier. His role involved the diluting and repackaging of the dangerous drug. This role to me is more serious when compared to that of a mere courier.

After considering all the circumstances of this case, I am of the view that a starting point of 11 years is appropriate here.

Whilst the defendant is not a man of clear record, he does not have any similar conviction of trafficking in a dangerous drug and only one conviction of possession of a dangerous drug, I will not enhance the starting point of 11 years.

For the defendant’s plea, he is entitled to a full one‑third discount. As conceded by his counsel, the defendant’s medical condition was not life threatening. In any event, a prisoner’s medical condition was not a matter to which a court would have regard for mitigation of a proper sentence, although it might well be a matter for the executive if brought to their attention and deserving consideration: that is the case Ho Mei Lin. The court can understand the anguish and distress caused to the defendant’s family by virtue of the fact that the defendant had to serve a long term of imprisonment, but that is not a ground to reduce the sentence. The defendant only had himself to blame.

For the offence of trafficking in a dangerous drug, the defendant is sentenced to 7 years and 4 months’ imprisonment.