HKSAR v. Lu Tsz Ho

DCCC 830/2017

[2018] HKDC 958

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 830 OF 2017

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REASONS FOR SENTENCE

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Background

1.The defendant was convicted on his own plea to a charge of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Agreed facts

2.On 11 July 2017, the defendant was intercepted by police, and after search, a total of 16 plastic bags containing 16 plastic bags of suspected dangerous drugs were found on the left inner pocket of the defendant’s jacket.  A mobile phone and sum of HK$1,981.50 cash were also found on him.

3.He was arrested and under caution, he admitted that he trafficked in “Ice” for a reward from a person known as “Ah Har” for the sum of HK$3,000 as he was in need of cash.

4.In the subsequent video-recorded interview on the next day, he confirmed the admission he made at the scene.  He said that contents of the plastic bags is “Ice” and that they belonged to him.  He was to deliver the “Ice” to another receiver pending instructions from “Ah Har” by phone.  He had not yet received the cash of HK$3,000.

5.Government chemist’s certificate confirmed that the contents of the plastic bags contain a total of 134.30 grammes of N-Isopropylbenzylamine, which is not a substance controlled under Dangerous Drugs Ordinance.

Criminal record

6.The defendant has a clear record. 

Mitigation

7.He was born in Hong Kong and aged 19 at the time of offence.  He is now aged 20.  He is single and resides with his parents, younger brother and paternal grandparents. 

8.He received education up to Form 3 level and since then has been working at various jobs.  At time of arrest, he was a renovation worker. 

9.He is not a drug abuser nor is he a CSSA recipient. 

10.It is mitigated on his behalf that since arrest, he was co-operative with the police and had frankly admitted the offence both at the scene and in the video-recorded interview.

11.He is deeply remorseful as to what he has done and regrets that he has brought stress to the whole family, especially his parents and grandparents.

12.His grandfather has been diagnosed with throat and lung cancer and is very worried that he might not be able to see the defendant after he has completed his prison terms.  The defence has shown to this court the relevant medical report for the grandfather from Baptist Hospital. 

13.Mitigation letters were presented to this court, including those from the defendant, his grandfather, his father, his mother and his uncle. 

14.They are all aware that the defendant has committed very serious offence and that the defendant should be punished for the wrong.  They are relieved that the substance was in fact not “Ice” which would bring a lot of harm to the community.  They will all support the defendant inhis rehabilitation when he finishes his prison term.

15.It was said by the parents that in the days when the defendant was very young, since they came from mainland, they had to work very hard to earn a living and might as a result have neglected the care of the defendant.  The mother had decided to quit her job to look after the defendant and his younger brother now that the present offence by the defendant rang a bell. 

16.They all say the defendant was a person with a good heart and always cared for the grandparents and the elderly.

17.They also presented to this court various certificates showing prizes awarded to the defendant in the years 2009 to 2011.

18.The defendant himself in his letter to this court also expressed his deep remorse for the commission of the present offence.

19.He said he had been mixing with undesirable peers and was asked to commit the present offence.  He was sorry that he brought stress and disappointment to family members and friends, and he asked this court for leniency.  He asked that in future, he would be more careful in selecting his friends and on release from prison would work hard and would not linger in game centres.  He promised to be a good and law-abiding person on release. 

Discussion

20.The maximum sentence for the conviction of the present offence on indictment is a fine of HK$5 million and to imprisonment for life.  In the case of HKSAR v Li Oi Yee CACC 362/2010, Stock VP said in paragraph 8 of the judgment that:-

“The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of criminality: R v Patel [1995] 16 Cr App R(S) 267,272. Whilst part of the sentence in any dangerous-drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs case is that of deterrence. It is the aim of the courts firmly to dissuade erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes erroneously that he is trafficking in dangerous drug to suggest that he shouldby reason of happenstance be immune from that deterrent policy.”

21.In paragraph 12 of the judgment of the same case, it says:-

“Insofar as the judge in our present case appears to have taken the view that the guidelines for actual trafficking in dangerous drug were of no help, we think that, in a case such as the present, the court should indeed look at the sentence which otherwise would be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the court should at the same time accord a reduction in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to the ultimate consumer.”

22.In Li Oi Yee case, the defendant was convicted of the same offence as the defendant in our present case.  She thought the 39.5 grammes she was carrying was “Ice” when in fact it was not a drug at all.  She was sentenced to 4 years’ imprisonment and she appealed.  Stock VP in paragraph 13 of the judgment says further that:-

“…indeed no justifiable complaint could  have been made had the sentence been one of 5 years’ imprisonment.”

23.In the case of HKSAR v Tam Yi Chun CACC 524/2011, the Court of Appeal laid down the sentencing guideline for trafficking in “Ice”. Between 70 grammes and 300 grammes, the sentence should be between 11 years to 15 years.

24.In our case here, the “Ice” involved is 134.6 grammes, and according to the tariff, the sentence should be 12 years.  As it was said in the case of Li Oi Yee, though the moral culpability remains the same, the court should afford a reduction in recognition of the fact that the actus reus brings with it that there is no actual harm to any ultimate customer.

25.For this reason, I am willing to adjust the same downwards to 7 years as the sentencing starting point in this case.  The defendant has pleaded guilty and therefore should be awarded full one-third sentencing discount which brings the sentence to 56 months.  As said, the defendant is very young.  He has a clear record for which I am willing to reduce the sentence to a further 3 months, bringing it to 53 months.

26.Further, he has been very co-operative with police.  Once he was arrested, he willingly shouldered the punishment.  It should be noted which I have considered a very strong mitigating factor being that had there not been an admission by the defendant, it would be very difficult for the prosecution to secure a conviction.  This, in my view, is a very strong mitigating factor.

Conclusion

27.For this reason, I am willing further to reduce his sentence for a further 12 months, bringing the ultimate final sentence to 3 years and 5 months.

28.The sentencing of this case should not be considered a precedent because of the very special circumstances of this case, and this court do have high hope that this young defendant will start afresh on his release from prison, wish you will treasure this chance.