HKSAR v. Lu Jiageng and Another

HCCC 69/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2017

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

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Background and the facts

On 27 February 2017, each of the two defendants pleaded guilty to one count of trafficking in a dangerous drug in the Eastern Magistrates Court. This morning, both confirmed their pleas before me and admitted the Summary of Facts.

Briefly, on 6 May 2016, the police intercepted the defendants when they were about to enter a building in Mong Kok. When the officers identified themselves as police, D1 ran away but was quickly subdued at the staircase of the building. Upon search, the police found, inside the rear pocket of D1's trousers, a packet of drug which is now particularised in Count 1, that is a total of 127 grammes of a crystalline solid containing 123 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

D1 was then arrested and under caution, he told the police that the drug was given to him by D2. The same was repeated in a subsequent video-recorded interview and D1 further stated that he was asked by D2 to help delivering the drug to others for a monetary reward.

As regards D2, upon search, the police found inside his front trousers pocket, two packets of drug which are now particularised in Count 2, that is a total of 30.8 grammes of a crystalline solid containing 29.8 grammes of methamphetamine hydrochloride. Under caution, D2 stated that the drug was given to him by D1. Subsequently, in a video-recorded interview, D1(D2?) claimed that he had purchased the drug from D1 and that the drug was for his own consumption.

The estimated street value of the drug in Count 1 was about HK$38,000 and that in respect of Count 2 was about HK$9,000.

D1’s background and mitigation

D1 is aged 26 and he has received education up to Form 2 level in the mainland. He was born in the mainland and came to settle in Hong Kong in 2010. At the time of his arrest, D1 was said to be working as a construction site worker earning about 12,000 to 13,000 on average per month. D1 has got four previous criminal convictions including two theft offences, one indecent assault and one possession of a dangerous drug.

In mitigation, Mr Chan, for D1, submitted that the most powerful mitigation is the early plea of D1. Mr Chan also said that D1 was a mere courier.

D2’s background and mitigation

D2 is aged 64 and he was educated up to Form 4 level. D2 was unemployed at the time of his arrest and he was living alone then. In total, D2 has got 47 previous convictions, the earliest ones being in 1969 was he was aged 16. Thereafter, D2 continued to reoffend the law and his convictions included those of theft, robbery, using a false instrument, wounding, abstracting electricity, assaulting and obstructing a police officer as well as 13 drug-related offences, two of which were trafficking in a dangerous drug. He was respectively sentenced to 22 months’ and 24 months’ imprisonment in 2006 and 2010 for those two trafficking offences. D2 was last discharged from prison in July 2014.

In mitigation, Mr Cheung, for D2, submitted that although D2 has quite an appalling record, he was converted to Christian faith a few years ago and he is now determined to change. D2 has also recently registered as an organ donor. In short, a lenient sentence is sought on his behalf.

Tariffs

The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 10 and 70 grammes of ‘Ice’, the revised term is one of 7 to 11 years’ imprisonment, while for trafficking between 70 and 300 grammes, it is one of 11 to 15 years.

Sentencing in this case

Having considered the amount of ‘Ice’ involved and the facts of this case, I am going to adopt a starting point of 12 years, that is 144 months, for Count 1 and a starting point of 8 years and 3 months, that is 99 months, for Count 2. Both defendants pleaded guilty and they would each receive a one-third reduction in sentence. Other than this, there is nothing in this case which would warrant any further reduction.

For D1, 144 months reduced by one-third is 96 months’ imprisonment. This is the sentence he should serve for Count 1.

For D2, although he has twice committed the offence of trafficking in a dangerous drug and has got a number of other convictions, I note that relatively short sentences were passed in respect of the trafficking offences. This would suggest that the trafficking offences might not be large-scale trafficking. Moreover, both such convictions were some years back, that is in 2006 and 2010. Therefore, having considered all the circumstances, I have come to the view that D2’s previous record should not be treated as an aggravating factor for the enhancement of sentence, see HKSAR v Choi Man Chun, CACC 414/2015, 27 March 2017, unreported.

Ninety-nine months reduced by one-third is 66 months’ imprisonment. I therefore order that D2 should serve a term of 66 months for Count 2.