HKSAR v. Lee Kai Hing and Another

HCCC 106/2019

[2019] HKCFI 2657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 106 OF 2019

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

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COURT:

Defendants, you have pleaded guilty at the Eastern Magistrates’ Courts before a magistrate on 25 March 2019. You were committed here to the Court of First Instance for sentence.

For the 1st defendant, you have pleaded guilty to a charge of trafficking in dangerous drugs in Charge 1 and pleaded guilty to possession of dangerous drugs in Charge 4.

The 2nd defendant, you have pleaded guilty to three charges. That is the 1st charge of trafficking in dangerous drugs, 2nd charge of manufacturing a dangerous drugs and the 3rd charge of trafficking in dangerous drugs.

For the 1st, 2nd and 3rd charges, these offences were committed on 7 December 2017, at Flat B6, 7th Floor, No 17 Nelson Street, Mongkok, Kowloon in Hong Kong. For the 4th charge, that was committed on 8 December 2017 inside a taxi PE 465 parked outside China Travel Service (Hong Kong) Limited, No 62-72 Sai Yee Street, Mongkok.

I turn first to deal with Charge 1. Both defendants have pleaded guilty to trafficking in 369.1 grammes of a solid containing 353.3 grammes of cocaine.

On Charge 2, the 2nd defendant has pleaded guilty to unlawfully manufacturing a dangerous drug, namely cocaine.

On the 3rd charge, the 2nd defendant pleaded guilty to trafficking in 72.11 grammes of a solid containing 58.56 grammes of cocaine, 560 millilitres of a liquid which upon drying contained 0.05 grammes of a solid containing benzoylecgonine, being an ester of ecgonine, and 0.15 grammes of a solid containing cocaine and benzoylecgonine, being an ester of ecgonine.

On the 4th charge of possession of a dangerous drug, the 1st defendant pleaded guilty and admitted that he had in his possession 5.18 grammes of a solid containing 5 grammes of cocaine.

The Summary of Facts of which the defendants have both admitted set out the background to the commission of these offences.

At about 6 pm on 7 December, police officers mounted an anti-narcotics operation to observe the taxi bearing registration number PE 465 and Flat B6, 7th Floor, Skypark, 17 Nelson Street, Mongkok, Kowloon, known as “the flat”.

At about 6.37 pm, the 1st defendant drove the taxi PE 465 and parked it outside the China Travel Service at Sai Yee Street near Skypark. The 1st defendant then alighted the taxi, carrying a black recycle bag, entered Skypark and took a lift to the 7th floor then entered the flat. Approximately half an hour later at 7.05 pm, the 1st defendant left the flat, carrying a black recycle bag. He was intercepted by the police.

In the meantime, the police also entered the flat and found the 2nd defendant inside the flat wearing a pair of surgical gloves on her hands. Another male was standing inside the flat. The officers executed a search warrant on the flat. The drugs and packing paraphernalia were found inside the flat.

Found inside the 1st defendant’s bag were the drugs as mentioned in Charge 1. The drugs were contained in a total of 18 plastic bags. The 1st defendant was arrested and cautioned and he said he just now took a black recycle bag up here and gave it to Ronnie, who was the 2nd defendant, who then put cocaine into the recycle bag for him to take away. He said the drugs found inside the flat did not belong to him.

The 2nd defendant was arrested and cautioned and she said she was the one responsible for making the coke here and it had nothing to do with the two males. She further said Simon, who is D1, helped to distribute the coke outside.

Later that evening, a scientific evidence officer arrived at the flat and inspected the premises. His name was Chan Wai‑chung. Based on his scene inspection and subsequent laboratory findings, the scientific evidence officer opined that considered collectively, the chemicals and paraphernalia seized from the scene were items commonly associated with the process of making cocaine base and the process could have taken place at the flat. To mention a few of the chemicals and items that were found were, for example, sodium bicarbonate, electronic scales, test tubes, metal sieves, an electromagnetic oven, glass containers, glass bottles, a glass beaker, and a metal pot.

After analysis, many items were found with traces of cocaine or contained cocaine. The surgical gloves seized from the 2nd defendant were also found to contain traces of cocaine. The dangerous drugs found inside the flat were the amount as stated in Charge 3.

At about 1 am on 8 December, the 1st defendant was taken to his taxi parked nearby, and found in the front passenger seat in a shoulder bag were the drugs as mentioned in Charge 4. After the defendant was arrested and cautioned, the 1st defendant said these were for his own consumption.

In a video-recorded interview taken from the 1st defendant under caution, he said, inter alia, he was a night-shift taxi driver. He had been renting the taxi PE 465 for about a year. He went to the flat with the recycle bag so that D2, that is Ronnie, could put some cocaine into the bag for him to take away. D2 had called him to come and get the things which he knew were cocaine. D2 packed the cocaine and gave the recycle bag to him. He would collect the cocaine and D2 would later call him to tell him who to give it to. For each packet of drugs he delivered, he would get a reward of $500 from D2. The two notebooks seized from him were for recording customers for dangerous-drugs delivery for D2. The drugs found in the bag in the taxi were for his own consumption. Previously, he said he and D2 were lovers but they had since separated.

The flat was found leased to the 2nd defendant. The 2nd defendant’s DNA was found on a paper container and glass bottle containing cocaine and a plastic container and another glass bottle inside the flat. The 1st defendant’s DNA was found on a plastic bag containing cocaine seized from the shoulder bag inside the taxi.

The estimated market retail value of the cocaine seized in Charges 1, 3 and 4 amounted to $520,044. For the cocaine in Charges 1 and 3, the amount was $514,009.65; and for Charge 4, the value was $6,034.70.

Just for the record, the 2nd defendant remained silent in a subsequent video-recorded interview.

I now turn to the backgrounds of the 1st and 2nd defendants. The 1st defendant is 57 years of age. He has a clear record. He is educated up to primary school level and was employed as a taxi driver at the time of the offence. He is married with a 24-year-old son. He had been taking drugs for approximately a year.

I have received letters from the defendant himself and a good friend of his whom he has known since the age of 16. The letter from the defendant states principally how very remorseful he is to have committed this offence at his ripe age of 57. The reason for him committing this offence is as a result of financial difficulties. He is, however, here to bear the punishment of the law and knows that his behaviour was extremely wrong. His friend, whom has known him since he was 16, says he is a very good family man. Mr Hemmings, his counsel, has informed me that the defendant did offer, to assist the police in an NPS but this was not fruitful as the information was too long ago and stale.

As to the 2nd defendant, she is 36 years of age and is single. At the time of commission of the offence, she was unemployed. Her father was a taxi driver aged 57 and her is mother aged 57. Ms Crebbin for the defendant has given me very detailed information as to the 2nd defendant’s background. She is a person of clear record until the commission of these offences.

In summary, what Ms Crebbin has informed the court is that the defendant was effectively left on her own devices since the age of 15. Her mother left to live in New Zealand and she had not much of support from her father. Prior to committing these offences, she was a law-abiding citizen and worked hard all her life to improve herself, all the while taking various courses and improving herself to get better jobs, also furthering her education. She did go to Japan to study Japanese and met her husband there but shortly thereafter that ended in divorce and she returned to Hong Kong in 2014.

Since returning to Hong Kong, she had difficulty gaining and keeping employment, her father fell ill and she sought to raise money for his illness to try her best to give him private care for his several operations and therefore involved herself in drugs to try to assist him.

She is very remorseful. She has written a letter to the court as well as both her mother and father who she has now reunited with. She knows that she has ruined her life and she has made a very big mistake, and for the time that she has been in custody, she has since lost her grandmother. She has informed me that she will continue to improve herself through her studies.

For both the 1st and 2nd defendants, the greatest and strongest mitigating factor is, of course, your plea of guilty at the earliest opportunity. There is nothing in your personal background which leaves you with any further mitigating factors.

It is well-settled law and goes back to the decision in R v Cheung Wai Kwong and Another [1997] HKLRD 344, Chan J, as he then was, that the offence of drug manufacturing is much more serious than trafficking in or possessing drugs and warrants a heavier sentence.

In HKSAR v Kan Kong Fai [2009] 3 HKLRD 582, the court there cited with the approval the factors to take into account when sentencing for manufacturing in dangerous drugs. In drug-manufacturing cases, the quantity of drugs seized might give an idea of the scale of the operation but was not the sole or dominant consideration in determining the starting point. The considerations for determining the proper sentence included the quantity of drugs produced, the scale of the operation, the capacity of the equipment, the output of drugs at the manufacturing station, and the role played by the accused.

In the present case, the police seized inside the flat 72.11 grammes of a solid containing 58.56 grammes of cocaine, including other minor drugs as stated in Charge 3. The paraphernalia and raw materials found inside the flat were for making crack cocaine. The facts are that the process of manufacturing crack cocaine was simple and fast.

The 2nd defendant had just supplied the 1st defendant with a large amount of cocaine. That is 361.1 grammes of a solid containing 353.3 grammes of cocaine for him to traffic.

The scale of production in the present case cannot be considered to be small and the output of drugs can be said to be fairly large. Although there was no cocaine hydrochloride found, there was still a fairly large quantity of sodium bicarbonate found. In this case, D2 had been able to manufacture a substantial quantity of drugs. The flat was a significant manufacturing station with quite a large scale of operation.

The 2nd defendant was seen wearing surgical gloves which contained traces of cocaine. Upon arrest and caution, she admitted that she was the one responsible for making the coke there. Therefore, D2 played a major role in the manufacturing process such that it was her who conducted the process from beginning to end.

The quantity of drugs, in view of the value, was not small. D2 was also the tenant and occupier of the premises. The aggravating factor in this case is that she was more culpable than the 1st defendant in that she was the one who arranged for D1 to collect the drugs and then she told him where to go to deliver the drugs and would also pay him for the delivery of the drugs. The 1st defendant was the mule or, rather, the courier in taking the drugs to whoever she had told him to deliver them to.

I now turn to sentence the defendants. The 1st and 2nd defendants, for Charge 1, you have admitted to trafficking in 361.1 grammes of a solid containing 353.3 grammes of cocaine. The sentencing guideline for trafficking in cocaine is laid down in the case of R v Lau Tak Ming.

Given the amount of cocaine that you were trafficking in, had you been convicted after trial, the appropriate starting point for Charge 1 would be that of 14 years and 3 months’ imprisonment. You have both pleaded guilty to the charge at the earliest opportunity and giving you the full one-third discount, the sentence on Charge 1 shall be reduced to 9 years and 6 months’ imprisonment.

For Charge 2, it only applies to the 2nd defendant. It is a charge of manufacturing of dangerous drugs. The amount of drugs found in the premises was 72.11 grammes of a solid containing 58.56 grammes of cocaine. What is clear, however, is that the drugs in Charge 1 came from within that flat which was 361.1 grammes of a solid containing 353.3 grammes of cocaine. The total of those two then of Charge 1 and 3, total amount of drugs was 441.21 grammes containing 411.86 grammes of cocaine. Had you been convicted after trial for this charge, defendant, I would have taken a starting point of 19 years’ imprisonment. Giving you full credit for your plea of guilty, that shall be reduced to 12 years and 8 months’ imprisonment.

For Charge 3, 2nd defendant, you had been trafficking in 72.11 grammes of a solid and 58.6 grammes of cocaine, and following the guidelines as laid down by Lau Tak Ming, had you been convicted after trial, I would have taken a starting point of 8 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 5 years and 4 months’ imprisonment.

For the 1st defendant, you pleaded guilty to possession of dangerous drugs in the amount of 5.18 grammes of a solid containing 5 grammes of cocaine. Had you been convicted after trial, I would have taken a starting point of 12 months’ imprisonment and would reduce that to one of 8 months’ imprisonment, giving you full credit for your plea of guilty.

Let me deal first with the 1st defendant. The charges were committed on different dates but very close in time. I order Charge 4 to run concurrent to Charge 1. That means you shall serve 9 years and 6 months’ imprisonment.

For D2, what I must consider here is the principle of totality. I have given anxious consideration to the total sentence that you have to serve. In the circumstances, I consider that if you had been convicted after trial, the total sentence I would have taken would have been 21 years’ imprisonment. And therefore giving you the full one-third discount, that would be reduced to 14 years’ imprisonment. To reflect that term of imprisonment, I order 1 year and 4 months of Charge 1 to run consecutive to Charge 2 and all other terms to run concurrent to each other. So again, D2, the total term of imprisonment you shall serve is 14 years’ imprisonment.