HKSAR v. Lee Ying Wai and Another

HCCC 378/2019

[2020] HKCFI 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 378 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case for A1

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COURT:

There are two defendants in this case. Each defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. That is Chapter 134.

D1, Lee, pleaded guilty to the 1st charge against him and D2, Ting, pleaded guilty to the 2nd charge against him before a magistrate, and they were both committed to the Court Of First Instance of the High Court for sentence. After both defendants confirmed their pleas and confirmed their Summary of Facts, I adjourned the case of D2 pending further investigation. I continue with the sentence of the 1st defendant, Lee.

Admitted Facts

The Admitted Facts disclosed that both defendants arrived in Hong Kong from Cambodia on 23 November 2018. Two packets of what was later confirmed to be 3.28 kilogrammes of a solid containing 2.134 kilogrammes of cocaine were found concealed inside the suitcase of D1 and while two packets of what was later confirmed to be 2.77 kilogrammes of a solid containing 1.926 kilogramme of cocaine was found concealed in D2’s suitcase. Both defendants were arrested and cautioned.

Under caution, D1 said it was Ah Chun, meaning D2, who had asked him to go to Cambodia to bring back the luggage of dangerous drug for a reward of $30,000.

In a video-recorded interview conducted with D1, D1 gave details of how he came to be bringing dangerous drug back to Hong Kong. In gist, D2, learning that D1 had been unemployed for a few months, told D1 to go with him to go abroad to bring back something for a reward of $30,000. It was D2 who made the arrangement for flights and accommodation. Both defendants went to Cambodia on 20 November and stayed in a hotel. On 22 November, they were given two suitcases by a Chinese man at the entrance of the hotel. D1 put his personal belongings in one of the two suitcases to be carried by him. They then checked out the next morning and returned to Hong Kong.

The estimated value of all the cocaine found in this case, namely, in the two suitcases was HK$7,217,650.

Background and mitigation

D1 is a 31-year-old single man. He was living with his parents prior to his arrest. He had one previous conviction of possession of dangerous drug for which he was fined $2,000 in 2011, meaning that now it is a spent conviction. He was educated to higher diploma level and worked as a computer technician. He claimed to be unemployed at the time of the arrest.

Mr Chang, counsel for the 1st defendant, submitted written mitigation on behalf of the 1st defendant. D1 had been working as a technician and also in the electrical field after completing his higher diploma course at IVE, and D1 suffered from an industrial accident and was on sick leave for five months. He then worked for a company maintaining air-conditioners but he was not paid for work done for three months after getting paid to work for half a year, and he quitted the job and then he had no income.

Out of greediness and foolishness, he committed the present offence. D1 is remorseful. Both the defendant and his father have written to this Court, asking for leniency.

Consideration of reasons for sentence

For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In the case of HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal set down guidelines for the trafficking of over 600 grammes of cocaine. There are four categories, starting from 600 to 1,200 grammes and progressing up to over 15,000 grammes.

In the case of D1, the cocaine involved here is 2.134 kilogrammes which falls into the category of 1.2 kilogramme to 4 kilogrammes with a starting point between 23 to 26 years. I am of the view that a starting point of 24 years is appropriate here. This case also involved an international element, so an enhancement is called for. As the amount involved is over 1 kilogramme, the enhancement would not be less than 2 years. That is also in the case of Abdallah. So with this enhancement, the starting point is now 26 years.

The 1st defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I appreciate that the defendant is truly remorseful and wishes to be released earlier to spend time with his aged parents. However, there are no other special or humanitarian grounds to further reduce the sentence. So for the offence of trafficking in a dangerous drug, the 1st defendant, Lee, is sentenced to 17 years and 4 months’ imprisonment.