HKSAR v. Lui Ka Kit and Others

HCCC 450/2017

[2018] HKCFI 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 450 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: D2 and D3, please stand up.

You were arrested on 9 March 2017. On 11 March 2017, you appeared before the Eastern Magistrates’ Court and at that time you did not enter a plea. It took several hearings and a number of changes of representation before you all pleaded guilty on 11 December 2017.

This was not an opportunist venture. It was a fairly sophisticated operation both of you agreed to carry out along with the 1st defendant, although I note that it was the 3rd defendant who actually rented the room and it was the 3rd defendant who lied to the receptionist so that you could all have access to that room. And of course, it is the 3rd defendant who is currently serving a sentence for trafficking in dangerous drugs which he committed just a month before you were all in this hotel room dealing in drugs and apparently making a large profit.

You certainly had all of the paraphernalia available to you to divide up the drugs in your possession into small enough quantities to sell on in what I presume was intended to be a quick operation, but you were being observed by the authorities and were found with the drugs, the equipment and the notebook at the scene. The 3rd defendant’s fingerprints were found within the room itself and the 2nd defendant’s fingerprints were found on the notebook. There was $16,120 in cash on the table and that was without taking into consideration the 80,000-odd dollars worth of drugs still to be sold on.

As is your right, neither of you chose to say anything on arrest and none of you offered any explanation in interview. There is therefore no evidence before me which suggests that my approach in sentencing should be differentiated, save for the greater role apparently played by the 3rd defendant. You are all equally guilty of this offence and of brazenly dealing in drugs.

D2, you are the eldest of the three of you, although you are all young, and I accept that you were very foolish in doing what you did. You were of previous good character and no doubt have loving and supportive parents who must bear the shame of having a drug trafficker for a son who is to spend time in prison. I cannot imagine the pain they must be feeling at this moment on your behalf. I am sure that you very much regret what you have done and the pain you have put your parents through, and I truly hope that you will use the time in prison to better yourself.

D3, you were arrested for this offence on 9 March 2017, but, on 11 February 2017, you had been found in possession of 0.98 grammes of ketamine and 1.76 grammes of cocaine in 13 separate plastic bags which you said you were going to sell. You were obviously on bail for that offence when you committed this one. You were in custody for this offence when you were dealt with for the first offence on 24 April 2017, which I presume was by way of a guilty plea, and you were sentenced to 20 months’ imprisonment. You are due to be released from that sentence on 30 April.

This was a wholly separate matter and carried out in the knowledge of the first arrest, and was a clear indication that you thought you were above the system. Ms Chan tells the court that you had not realised the seriousness of the situation until you were incarcerated after being arrested for the second time. That may be the case, but you knew what you were doing and that it was clearly illegal. You were the one who rented the room for this operation and, given your previous offending, it would not be improper to infer, in the absence of any other evidence, that you led the other two in this.

You are also very young and have parents, who are suffering because of the very foolish acts that you carried out, but you knew what you were doing and you bear the responsibility for encouraging at least the 1st defendant into trouble.

The charge you all face involves two different types of drugs, ketamine and cocaine.

Ketamine falls to be dealt with under the guidelines in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. For between 50 and 300 grammes, the starting point after trial should be between 6 and 9 years. For 100.83 grammes, it would attract a starting point for sentence of 6 years and 7 months.

Cocaine falls to be considered under different guidelines. In HKSAR v Lau Tak Ming [1990] HKLR 370, for between 10 and 50 grammes the starting point after trial would be in the range of 5 to 8 years, and for 16.69 grammes the starting point is therefore 5 years and 6 months.

If I considered those two drugs together, that would make a total sentence of 12 years and 1 month, which far exceeds the criminality of your offending. I have therefore taken into account the decision of the Court of Appeal in Chan Yuk Leong, CACC 318/2013, and have adopted the ratio test rather than the conversion test as being the approach most favourable to you. Under that test, the ketamine represents approximately 85.8 per cent of the total quantity of drugs and the cocaine represents approximately 14.2 per cent. If the total quantity of drugs, 117.52 grammes, taken altogether were ketamine, then the sentence it would attract is 81 months. 85.8 per cent of that sentence is 69.4 months, whereas the sentence for 117.52 grammes of cocaine has a starting point of 117 months, 14.2 per cent of which is 16.7 months. The result of that maths is that it is a total of 7 years and 3 months.

Tso Kam-chuen, the starting point I adopt on Count 1 is one of 7 years and 3 months’ imprisonment. I have taken your previous good character into account and everything which has been said on your behalf by Mr Wong. I am prepared to give you a full one-third discount for that plea even though you did not enter that plea at the first available opportunity - but you did indicate a guilty plea in October 2017 and so I will give you the benefit of the doubt. Unfortunately, there is no other mitigation which can reduce the sentence I must pass. You will go to prison for 4 years and 10 months.

Law Ka-yiu, the starting point I adopt on Count 1 is one of 7 years and 3 months’ imprisonment, but you were on bail at the time of this offending. You had only just been arrested a month before. It clearly had no effect upon you whatsoever. I intend to add 3 months to that starting point to mark this offending whilst on bail. I also intend to add 3 months to your sentence because you have a previous conviction for exactly the same offence of trafficking in dangerous drugs. I intend to add a further 3 months because you clearly played a greater role than the other two; you set up the hotel room and you enabled them to obtain access. That is a total of 8 years. I have considered everything which Ms Chan has said on your behalf. You will get a full one-third discount for your plea for the same reasons which I have explained in respect of the 2nd defendant. You will go to prison for 5 years and 4 months, all of which is to run consecutively to the sentence that you are currently serving.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings. ............................................... Lavina Saney Date: 20 April 2018