HKSAR v. Lo Lap Kan

HCCC 311/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 311 OF 2016

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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 for two counts of trafficking in dangerous drugs and was committed before me for sentence.

The offences were committed on 17 July 2015. At about 2035 hours, the defendant was seen leaving Block A, Honour Building, No 78 To Kwa Wan Road, and was intercepted by police officers. Upon search, one set of keys and two transparent plastic bags were found inside a recycle bag the defendant was carrying. It was confirmed later that there was in total 1,233 grammes of powder containing 727 grammes of ketamine inside the two transparent plastic bags. Under caution, the defendant admitted that he wanted to sell the ketamine to earn money.

The defendant then led the police to his residence at Honour Building. The police gained access to the defendant’s residence using the set of keys found on him. A house search was conducted and the police recovered, in the living room, 27 transparent resealable plastic bags of suspected ketamine, two transparent resealable plastic bags of suspected cocaine, four electronic scales and 508 resealable plastic bags. It was later confirmed that the total quantity of drugs recovered in the defendant’s residence amounts to, respectively, 4,070.29 grammes of a powder containing 2,778.17 grammes of ketamine and 10.54 grammes of a solid containing 6.78 grammes of cocaine. Under caution, the defendant admitted that he intended to sell the drugs for money.

In a video-recorded interview, the defendant stated that a person named “Z Chai” asked him to help distribute the drugs for which he could earn 500 to 2,000 for each delivery. Z Chai would provide him with the contact details of customers via WeChat and the defendant would contact the customers by himself. The customers would pay by transferring money to Z Chai’s bank account and the defendant would then receive a reward in cash from Z Chai.

The total retail market values of seized ketamine and cocaine were respectively HK$774,280 and HK$12,279.

The defendant is now 26 years old. He has nine previous criminal convictions, all related to theft offences. He is single and educated up to Form 1 level. At the time of his arrest, he was working as a cleaner earning about 11,000 to 12,000 per month.

In mitigation, Mr Ma, counsel for the defendant, submitted that the defendant committed the present offence because he needed HK$30,000 to repair his broken teeth. The defendant has himself written to this court saying that he is very remorseful. He learnt now to appreciate his family who have all been very supportive to him after his arrest. He will learn other skills in his imprisonment, hoping that he can contribute to society in the future. He asked for this court’s leniency so that he can have a chance to see his grandparents again.

Mr Ma submitted that the defendant has been very co-operative to the police and the prosecution throughout. He also tried to provide information to the police but, unfortunately, the result was not fruitful. In any event, the prosecution had confirmed in a letter that the Z Chai was in existence and the information provided by the defendant was related to him. Mr Ma referred to the Court of Appeal case HKSAR v Jardin Rodela Maningas, CACC 278/2011 (29 May 2012) and submitted that this court should accord some credit to the defendant’s attempts to help in considering sentence.

Trafficking in dangerous drugs is a very serious offence and the Court of Appeal has laid down sentencing guideline in respect of trafficking in different kinds of drugs. In HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, for trafficking in a quantity between 600 and 1,000 grammes of ketamine, the starting point for sentencing should be between 12 to 14 years’ imprisonment, and for trafficking in a quantity more than 1,000 grammes, the starting point should be more than 14 years. In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal added that, for trafficking in 2,000 and 3,000 grammes of ketamine, the appropriate starting point should be no less than 18 years and 20 years, and if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years.

In the case of R v Lau Tak Ming [1990] 2 HKLR 370, for trafficking in a quantity of up to 10 grammes of cocaine, the sentencing range should be a term of 2 to 5 years’ imprisonment.

The heavy sentence imposed for drug trafficking offences is for the very purpose of deterrence. Factors such as young age and financial hardship can carry no weight in mitigation. Regarding the defendant’s assistance to the police, the situation in the present case is totally different from that in Maningas. In that case, the defendant had actually participated in a controlled delivery operation arranged by the Customs and Excise Department whereas, in the present case, the defendant had merely given information having no useful assistance to the authority despite much effort being put in by the police in investigation. In my view, the attempted assistance by the defendant cannot accord him with extra credit in this case.

For the 1st charge, the quantity of drugs involved is 767 grammes of ketamine. Applying the tariff in Hii Siew Cheng, the proper starting point for sentence should be 12 years and 9 months’ imprisonment.

Taking into account the defendant’s plea of guilty, the defendant is given a full one-third discount and hence the defendant is sentenced for a term of 8 years and 6 months’ imprisonment for the 1st charge.

For the 2nd charge, that involved two different kinds of drugs. As submitted by Mr Ma, the quantity of cocaine involved when compared to the ketamine involved is relatively insignificant for the purpose of sentencing. The proper approach to take in the present case is the combined approach and the tariff of sentence for ketamine should be adopted for consideration of the sentence. With this approach, adding 6.7 grammes, that is the quantity of cocaine involved, to 2,778.17 grammes, the quantity of ketamine involved, the proper starting point for sentence for the 2nd charge should be 19 years and 9 months’ imprisonment.

Taking into account the defendant’s plea of guilty, the defendant is sentenced for a term of 13 years and 2 months’ imprisonment for the 2nd charge.

In relation to the overall sentence, this court should consider the totality principle. If all the drugs involved for the two charges are to be taken into account and using the combined approach, the total quantity for consideration would be 3,551.95 grammes. Adopting the tariff under Hii Siew Cheng and the principles stated in Sin Chung Kin, the proper starting point for sentence should be, in my view, 20 years and 3 months’ imprisonment.

Giving the discount for the defendant’s guilty plea, the sentence should then be reduced to 13 years and 6 months.

In the circumstances, I order that 4 months of the sentence of the 1st charge be served consecutively with the sentence of the 2nd charge. The rest of the sentences be served concurrently, making a total sentence of 13 years and 6 months’ imprisonment.