HKSAR v. Lui Siu Chung

HCCC 38/2020

[2020] HKCFI 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 38 OF 2020

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

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COURT: The defendant, Lui Siu-chung, was originally charged with one count of conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Chapter 200, that is the 1st charge, and one count of trafficking in a dangerous drug. That is contrary to section 4(1)(a) and (3) of the said Dangerous Drugs Ordinance. That is the 2nd charge.

The defendant pleaded guilty to the 2nd charge before a magistrate and was committed to the Court of First Instance of the High Court for sentence, the prosecution having withdrawn the 1st charge.

The Admitted Facts

At about 2233 hours on 3 January 2019, the defendant was seen sitting on the driver seat in a private car which was stopped at Kai Tin Road. As the defendant acted suspiciously, that is looking around, talking on the phone and leaning forward as if handling something underneath the steering wheel, the police officers revealed their identity and invited the defendant to alight.

A search of the defendant’s body revealed cash of $410 and three mobile phones. That is two iPhones and one Huawei phone. Search of the car revealed a paper bag underneath the steering wheel, and inside the paper bag there were further bags containing what was later confirmed to be 525 grammes of a solid containing 281 grammes of cocaine.

Under caution, after being arrested for the offence of trafficking in a dangerous drug, the defendant told the police that the stuff was “coke” and that $500 would be the reward for each bag.

The defendant took part in a number of video-recorded interviews. In the first one, the defendant admitted the “coke” he mentioned under caution at the scene meant cocaine. He knew there were cocaine inside the paper bag and he was waiting to deliver the cocaine to a Chinese for a reward when he was arrested by the police.

During the second video-recorded interview, the defendant gave details about his personal background. In short, he owed a gambling debt of $800,000 and had to repay $10,000 per month for 10 years. He came to know a South Asian at a pub and he was then introduced to work as a deliverer of drug for a reward. He agreed to deliver the drug because of his debt. He borrowed a friend’s car, obtained the paper bag and a Huawei phone from a South Asian and was told to deliver the paper bag to a Chinese at Kai Tin Estate. He was told that person would call the Huawei phone.

The police checked the Huawei phone and found suspicious WhatsApp messages exchanged with a contact Q. In these messages, Q was giving instructions of delivery to different locations in Hong Kong and providing different phone numbers for contact. These messages were exchanged between 2020 hours and 2222 hours. That is 10-odd minutes before the police investigation of this case.

The defendant took part in a third video-recorded interview in which these suspicious WhatsApp messages were put to him. The defendant then gave details of how there were other people on board the private car when he got on. He was told by the Chinese on board the car that two of them would pick up the dangerous drug together and distribute them according to an order sheet. The paper bag was picked up in Tuen Mun from a South Asian. The defendant was then asked to drive the car later while the South Asian driver went to the back of the car to count the dangerous drug. The defendant was then given the paper bag and he kept it underneath the steering wheel. The South Asian then left. The defendant was given the Huawei phone and its password by the Chinese before the latter alighted.

The defendant was instructed to open the WhatsApp application on the Huawei phone and deliver the dangerous drug according to instructions and photographs in the messages with Q. The defendant would use the Huawei phone to contact with customers. He was arrested when he was making one of the deliveries. He expected to receive a reward of $14,500.

The estimated street value of the cocaine seized is approximately $578,025 as powder and $656,250 as crack.

The defendant admitted he was knowingly in possession of the dangerous drugs seized in this case for the purpose of unlawful trafficking.

Background and mitigation

The defendant was born in 1982 in Hong Kong and is now 38 years of age. Ms Money Lo, counsel for the defendant, submitted that the defendant’s parents divorced when he was eight as his mother raised him and his two sisters singlehandedly, working as a packer of mothballs at home. The defendant worked part-time doing cleaning jobs to help out when he was still in secondary school. He quitted school after completing Form 3 to join the workforce. The defendant worked as a casual worker in construction and renovation work before working as a driver for logistic companies in addition. In other words, the defendant held multiple casual jobs prior to his arrest.

The defendant had a 15-year-old daughter with his ex‑girlfriend but both left him in 2007. The defendant became addicted to gambling and wanted to make quick money to repay his debts and stupidly committed the present offence.

The defendant is not a first offender. He appeared five times in court and had eight convictions recorded. None of them is drug-related. Though terms of imprisonment had been passed on him before, they were all suspended sentences and never activated, so this is the first time the defendant is actually incarcerated.

The defendant wrote to me, expressing his deep remorse. He said he was the only breadwinner in the family, earning 10,000 to 12,000 per month as a long-term casual transportation worker. He regretted wanting to earn quick money and committing the present offence. He promised not to reoffend and asked to be treated leniently.

Ms Lo submitted that the defendant was truly remorseful and pleaded guilty at the earliest opportunity and vowed not to transgress the law nor to indulge in gambling again. Ms Lo also mentioned that the defendant’s father, who lives in the Mainland, had come to Hong Kong despite the need to have quarantine in order to support the defendant. And after referring to the relevant authorities, Ms Lo asked this court to give the defendant a chance, to adopt a starting point less than 13 years and 2 months.

Consideration and Reason 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. The cocaine involved here was 281 grammes. In the case of AG v Pedro Nel Rojas, it was held that the sentencing guideline laid down in the case of Lau Tak Ming should apply for the trafficking of cocaine. According to the guidelines in Lau Tak Ming, trafficking between 200 to 400 grammes of cocaine, the starting point is one of 12 to 15 years.

The defendant was involved in active delivery of the dangerous drug to different persons at a different location. I am of the view that in the circumstances of this case, a starting point of 13 years and 2 months after trial is appropriate. While the defendant is not a man of clear record, he does not have any drug-related conviction and I will not enhance the starting point. While I appreciate the defendant’s promise not to transgress the law again and despite the mitigation submitted by Ms Lo on the defendant’s behalf, I do not think it appropriate for me to adopt a starting point less than 13 years and 2 months, and 13 years and 2 months would equal to 158 months.

The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I do not see other grounds to further reduce the sentence despite the defendant’s promise not to transgress the law or to gamble again.

So with the one-third discount, the sentence is one of 105 months, which is equivalent to 8 years and 9 months. So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 8 years and 9 months’ imprisonment.