HKSAR v. Lo Shing Lok

HCCC 64/2017

[2018] HKCFI 1055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 64 OF 2017

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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 today to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in that he unlawfully trafficked in 1 kilogramme of cocaine on 1 November 2013. That is four and a half years ago. He was originally committed for trial on 14 August 2014. His first trial, HCCC 372/2014, took place before Deputy High Court Judge Woo. He was convicted after trial and on 23 December 2014 was sentenced to a term of imprisonment of 21 years and 6 months. On 6 January 2015, he applied for leave to appeal that conviction. It was heard on 4 December 2015, 21 July 2016 and 6 December 2016. The Court of Appeal allowed his appeal on 22 February 2017 and ordered a retrial.

The matter was listed for retrial on 5 May 2017, when a voir dire was held which lasted for some four days, but which spanned dates in May and in August of 2017. In that hearing, the defendant sought to have ruled inadmissible his admissions against interest on arrest and caution and his later admissions within the video-recorded interview.

I note that the case put forward on the voir dire on this occasion was not on all fours with the defence case led in the previous trial. In any event, by a ruling dated 25 August 2017, I found the admissions against interest made by the defendant upon arrest and caution and later within the VRI to have been made voluntarily. The matter therefore had to be adjourned further for trial. It was listed to be heard on 15 June 2018, that being the earliest date that counsel was available and this court’s diary could accommodate it.

Some six months later, on 22 February 2018, this court was notified by those representing the defendant that he had decided to enter a guilty plea, but that change of mind was some four years and four months after his offending.

The prosecution case is, and always was, that on 1 November 2013, during an anti-narcotics operation, the defendant was seen by two police officers carrying a black plastic bag and walking towards the concourse of Mong Kok East MTR Station. He was observed to be looking around nervously. The defendant went to the platform of the railway station where he met and talked to his friend Wong Fuk-yin, who I will refer to as “Wong”. Together, they boarded a train travelling to Hung Hom and the police officers followed them.

At Hung Hom MTR Station, the defendant and Wong disembarked from the first train and boarded another train travelling on the West Rail Line in the direction of Tuen Mun. They alighted from this train at Yuen Long MTR Station. When the defendant and Wong disembarked from the train at Yuen Long MTR Station, the two police officers intercepted them on the platform, revealed their identities to them and searched the black plastic bag that was then being carried by the defendant. His bag was searched and it contained a blue box in which there were three photo albums containing a total of 41 laminated photographs. Suspecting that dangerous drugs were contained within the laminated photos, the officer arrested and cautioned the defendant whereupon he said, “I only helped others to bring the dangerous drug cocaine to the customer. I have not received any money yet. It has nothing to do with my friend, Wong Fuk-yin.”

He was then taken to a disabled toilet for a search by 52335. Inside the disabled toilet, 52335 said that he had carried out a search and recovered some items including two mobile phones.

He later underwent a video-recorded interview during which the defendant said that he had come to know a friend called Ah Chun at a ball court three to four months previously. The previous day, which was 31 October 2013, he had again seen Ah Chun at the ball court at about 8.30 pm and he asked Ah Chun if there was a job he was able to recommend to him. Ah Chun said there was and he asked the defendant to go to the 7-Eleven store and buy a phone card. The defendant did so and returned to Ah Chun who then rang a person and gave him the number of the defendant’s newly bought pre-paid SIM card. Ah Chun told the defendant that the person to whom he had just spoken would call him that night.

The defendant received a call at 11.30 that night and was offered a job. When he asked what the job was, the person on the phone said, “Go and carry dangerous drugs to customers for me, and the dangerous drugs are cocaine.” This person then arranged for him to wait at Mong Kok MTR Station the following day, 1 November, between 12.30 and 1.

The defendant said he arrived at Mong Kok MTR Station at 12.30 and five minutes later the same person called him and said that another person would call him, and that second person would hand over the dangerous drugs to him. He said he did in fact receive another call and arranged to wait for this person at the exit of the Mong Kok MTR Station near to Grand Century Place shopping complex. Three minutes later, he met the second person and was given a black plastic bag containing a file-like object. The defendant then called the boss who had offered him the job and was instructed by him to take the black plastic bag to Yuen Long. He did so and, as we know, was arrested by police at Yuen Long MTR Station. The defendant said he had been promised $700 for delivering the drugs but would not receive it until the delivery was completed.

The 1 kilogramme of cocaine which had been found professionally infused into the tissue between the bundle of photographs had a street value of some $1,346,880 in November of 2013.

Mr Iu on behalf of the defendant says that the defendant is now 24 years of age, so he was just 20 years old at the time of his offending, having had a clear record up to that point in time. There is little other mitigation save for the fact that he has come to his senses all on his own and decided to make a clean breast of matters. That is very much to his credit. Mr Iu urges the court not to take into account the first trial and the appeal against his client. He asks the court to treat the matter as if this was his first trial and this was a plea after voir dire, in which case, it should attract a sentence in the region of 20 to 25 per cent even though Mr Iu would dearly like it to be greater.

The guideline case for trafficking in between 600 and 1,200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437 and the range of sentence is between 20 to 23 years. For trafficking in 1 kilogramme of cocaine, the correct starting point after trial is actually 22 years. HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 does not apply as this case was originally committed for trial in August of 2014 and then set down for retrial in February of 2017.

The fact that this matter has taken so long to come on for plea must be at the door of the defendant. Of course, he is entitled to have the prosecution prove their case, but, having done so not once, but intending to embark upon the same course for a second time, the defendant can hardly expect a discount for plea of 33 per cent. Indeed, he has had a voir dire once again to seek to rule out his VRI and that has taken up more court time and public expense when, by his plea today, he has always known that he is guilty of this offence.

Taking into consideration his relative youth, his clear record and all that has been said on his behalf most ably by Mr Iu, I consider that in all the circumstances, including the procedural history, the appropriate sentence is one of 17 years.