HKSAR v. Lau Kwai Yung

HCCC 97/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 97 OF 2017

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

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COURT:

The respondent, Lau Kwai-yung, who is aged 48 years, pleaded guilty on 20 March 2017 at the Eastern Magistracy to two charges. Those charges were possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, the 1st count, and 2, trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of those offences were as follows.

Count 1, it was alleged that on 18 June 2016, at the junction of Tong Mi Road and Argyle Street, in Mong Kok, in Kowloon, at about 11.30 pm in the evening, the defendant was apprehended by the police and found to be in possession of a dangerous drug, namely 2.42 grammes of a crystalline solid which subsequently was determined to be 2.37 grammes of methamphetamine hydrochloride.

The 2nd count: on the same date, that is 13 June 2016, at Room H, 5th Floor, Cheung Fai Mansion, No 22 Tong Mi Road, in Mong Kok, Kowloon, she was alleged to have unlawfully trafficked in a dangerous drug, namely 1.56 kilogrammes of a crystalline solid which was subsequently determined to contain 1.36 kilogrammes of methamphetamine hydrochloride.

A Summary of Facts submitted by the prosecution was read in court and accepted by the defendant. Today, she has confirmed both her pleas of guilty and the accuracy of that Summary of Facts. The Summary of Facts reveals, amongst other things, as follows.

At about 11.30 pm or thereabouts on 12 June, the defendant was stopped by police officers in Tong Mi Road in Kowloon. She was searched and the dangerous drugs which are referred to in the 1st count were found in the pocket of her trousers, in a plastic bag. Those drugs she claimed were for her own consumption. She was arrested and it was established that she was in possession of cash some $18,582.50. She was taken from the street in Mong Kok to premises that she had indicated to the police is where she resided. Those are the premises referred to in Count 2, namely Room H, 5th Floor, Cheung Fai Mansion, 22 Tong Mi Road.

Police gained entry to those premises and subsequently found, after opening a locked bedroom door, amongst other things, a plastic bag on a coffee table. That plastic bag contained a quantity of white crystalline solid which was subsequently established to be the 1.36 kilogrammes of methamphetamine hydrochloride. The police also found two electronic scales and a quantity of empty transparent resealable bags.

The defendant initially claimed that the dangerous drugs in that room, or found in those rooms were not hers and that she was keeping them for one “Ah So” and that she was responsible for giving them out to purchasers as required. In a subsequent video-recorded interview, she said that she herself had been addicted to ‘Ice’ or methamphetamine hydrochloride, for five to six years. Ah So had offered her a job, selling dangerous drugs, and he had arranged for her to be accommodated in the Tong Mi Road address. When customers wished to make a purchase, she would use the electronic scales to weigh out 7 grammes or thereabouts of the drug which was sold for $500. After the sales were made, someone would come to collect the money from her.

It was an admitted fact that the estimated street value of this quantity of dangerous drugs was in excess of $530,000. It was accepted in the Summary of Facts by the defendant that she was trafficking in those dangerous drugs.

On 20 March, after accepting the defendant’s pleas of guilty and the Admitted Facts, the magistrate committed the defendant to this court, pursuant to section 81(b)(2) of the Magistrates Ordinance, for sentencing.

The defendant has a long and unfortunate history of involvement with dangerous drugs. She was first convicted of possession of dangerous drugs in 2003 and thereafter was regularly convicted of that offence. She has never before been convicted of an offence of trafficking in dangerous drugs.

There is little known about her background from the matters advanced in mitigation other than to confirm what I have already said, that she does have and has had for some many years a long history of addiction to dangerous drugs.

In the course of his mitigation on behalf of the applicant, Mr Boyton has urged upon me that she should be given credit for having taken the police to the premises where the very large cache of drugs were found. With respect, and I have indicated to him, I could not accede to that proposition as being a mitigating factor unless it was established that she clearly intended to take them there to find the cache of drugs.

In the Summary of Facts, she admitted - and this is part of the police case - that she resided at those premises. It was a matter of logic, as night follows day, that as she had told the police that she resided at those premises, then that is where she would be taken after she had been apprehended in the street with a quantity of methamphetamine hydrochloride and, more particularly, with a very large amount of cash. I have indicated to counsel that the representation does not afford her any mitigation in the circumstances.

Further matters advanced by and on behalf of the defendant are to the effect that any sentence imposed for the simple possession charge, namely Count 1, should be made concurrent to the trafficking charge, Count 2. I have indicated to counsel that I would readily accede to that request, bearing in mind the sentence which will be imposed on Count 2 pursuant to the guidelines provided by the Court of Appeal and also looking at it from the point of view of totality.

Sentencing for very large quantities of dangerous drugs are generally governed by the observations of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. Mr Boyton accepts that these are the guidelines which should be applied in the instant case. It is accepted by the prosecutor and Mr Boyton that the defendant, having pleaded guilty at the first opportunity in the Magistrates Court, is entitled to a full one-third discount from the head sentence which would be imposed.

Taking the 1st count, in the circumstances, I believe that a sentence after trial for possession of this quantity of methamphetamine hydrochloride would be one of 18 months’ imprisonment. Given her plea of guilty, she is entitled to a full one-third discount from that so the sentence that would be imposed would be one of 12 months’ imprisonment.

The quantity of methamphetamine hydrochloride in Count 2 is a very large amount, 1.36 kilogrammes. Looking again at the guidance provided by the Court of Appeal in Abdallah, it comes within the parameters of the 1,200 to 4,000 grammes bracket where the court has indicated sentences, without further aggravating factors, ranging between 23 years to 26 years’ imprisonment.

In the present circumstances, there are, to my mind, no significant aggravating factors which would require me to impose additional sentence beyond the parameters indicated by the Court of Appeal. In those circumstances, looking at the matter in the round, I indicate that the starting point for sentence should be one of 23 years’ imprisonment.

Given a full one-third discount from that for her plea of guilty, I will impose the following sentence: one of 15 years and 4 months’ imprisonment. That is the sentence that will be imposed on Count 2.

As I have indicated, I think it is proper that the sentence of 12 months on Count 1 be concurrent to the sentence on Count 2 and I will make an order to that effect.

So the total sentence is 15 years and 4 months’ imprisonment.