HKSAR v. Leung Wai Yin and Another

HCCC 86/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 86 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 13 March 2017, D1 pleaded guilty in the Magistrates Court to the 1st count of trafficking in a dangerous drug which was laid against D2 and him jointly, whereas D2 pleaded guilty to both the 1st and the 2nd counts of trafficking in a dangerous drug. On 18 July 2017, both defendants confirmed their pleas before me and accepted the prosecution’s Summary of Facts.

Briefly, on 4 March 2016, D1 was stopped by the police when he walked out from the lift to the hotel lobby of Harbour Plaza 8 Degrees. At the time, D1 was carrying two bags. Upon search, the police found from each of the bags, four red wine bottles containing liquid. When asked by the police what those were, D1 said that it was cocaine. Under caution, D1 admitted that all the eight bottles contained cocaine and they were given to him in Room 928 by a male.

The bottles were later confirmed to contain a total of 6.95 kilogrammes of a liquid containing 3.5 kilogrammes of cocaine. This is the subject matter of the 1st count.

Shortly after the arrest of D1, the police, with the assistance of the hotel manager, gained access to Room 928. D2 was found inside the room by himself. At the time, there were four bottles of similar packing in the sitting room.

The bottles were later confirmed to contain 3.49 kilogrammes of a liquid containing 1.88 kilogrammes of cocaine.

Under caution, D2 said that it was Ah B who asked him to hand the cocaine to someone and there were four bottles left.

Both defendants were subsequently interviewed by way of video recording and both made further admissions including that they were each asked by another person to help delivering the cocaine. D1 said he was promised a reward of HK$1,000 while D2 said his reward was HK$3,000, but both had not been paid.

The drugs seized had a total estimated retail value of about HK$5.7 million.

D1’s Background and Mitigation

D1 is now aged 35. He was educated up to Form 3 level and after quitting school, he had worked as a warehouse staff and a delivery worker. D1 had a clear record prior to the commission of the present offence.

In mitigation, Mr Davies for D1 told the court that D1 fully co-operated with the police, not only did he plead guilty at the earliest opportunity, he had also given two NPS to the police, implicating D2. Mr Davies informed the court that if D2 had not pleaded guilty, D1 would have been prepared to testify for the prosecution. Such conduct of D1, it was submitted, did not only show D1’s genuine remorse but was also illustrative of the extent of assistance D1 was prepared to provide to the prosecution.

Insofar as the background of D1 is concerned, Mr Davies supplemented that D1 was brought up by his father but their relationship was not good. Finally, Mr Davies urged upon this court that given that, in this case, D1 only played a minor role and he was fully co-operative, a lenient sentence should be imposed on D1.

D2’s Background and Mitigation

D2 is now aged 21 and is single. He was educated up to Form 4 level. D2 has got three previous convictions, two of theft and one of arson. He has been put on probation and has been sent to the Detention Centre. After quitting school, D2 had taken up casual jobs in restaurants and had been supporting himself since he started working.

Ms So, for D2, told the court that D2 was a mere courier. At the time of the offence, D2’s income was unstable and he was therefore persuaded to earn some quick money by delivering the drugs, to which he foolishly agreed, but in respect of which, he is now genuinely remorseful.

Subsequent to his arrest, it was said that D2 has developed a close relationship with his family as they all pay him regular visits and show him unceasing support. Ms So informed the court that D2 had already been negotiating a plea bargain with the DoJ in January 2017 and that he had indicated his plea prior to receiving the first NPS of D1. It was said that D2 now realises the seriousness of the offence and is determined to turn over a new leaf by picking up his studies again while in prison.

Further, letters written by D2’s mother, his friend, his former employer and a District Council member who has lived in the same estate as that of D2, were given to the court. In short, all described D2 as a responsible, courteous and hard-working person and all felt that D2 had been led astray by his undesirable peers which resulted in his commission of the present offence. They all asked for a lenient sentence to be imposed on D2.

The Sentence

The tariffs for trafficking in cocaine were the same as those for heroin, see AG v Rojas [1994] 1 HKC 342 and HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 1,200 and 4,000 grammes of cocaine, a term of 23 to 26 years’ imprisonment is called for. Having considered the facts of this case and the amount of the drugs involved, I take the view that for Count 1, a starting point of 25 years is appropriate. As for Count 2, a starting point of 23½ years would be appropriate.

However, insofar as D2 is concerned, as the drugs in both counts were found on the same day but just that the 1st count relates to the drugs carried by D1 whereas the 2nd count relates to the drugs found inside the hotel room, it is appropriate to add the two lots of drugs together. In other words, for the total quantity of 5.42 kilogrammes of cocaine, and to be as lenient as I can, I consider 26 years is the appropriate overall starting point for both counts.

Both defendants pleaded guilty at an early stage so I am prepared to grant the full one-third reduction for their pleas.

Insofar as D1 is concerned, although his NPS was not served on D2 until after D2 had indicated his plea, I note that he made full admissions at the scene and he had told the police the hotel room number from which he had got the drugs. The police then gained entry to the room and arrested D2 there with the other drugs. In the circumstances, I accept that D1 indeed offered useful assistance to the police and I am also prepared to accept that if D2 had not pleaded guilty, D1 would have been willing to testify on behalf of the prosecution.

Therefore, I would give D1 a reduction of about 40 per cent, to take account of his guilty plea and the assistance he had offered to the police.

As to D1’s clear record and D2’s relative young age, as well as both defendants’ personal circumstances, such do not constitute any mitigating factor of significance which would entitle them, or either of them, to any further reduction in sentence in this type of serious offences. Therefore, apart from the respective reductions which I have mentioned, there is nothing which would warrant any further discount in sentence.

Twenty-five years reduced by 40 per cent is 15 years. This is the term I am going to impose on D1 for Count 1.

The overall starting point of 26 years, reduced by one-third, is 17 years and 4 months. This is the term I impose on D2 for each of Counts 1 and 2.

However, as this overall term already reflects the total amount of the drugs involved in both counts and having considered the totality principle, I order that both terms are to be served wholly concurrently, resulting in a total term of 17 years and 4 months for D2.