At about 6.20 pm, Chu Chui-shan and Lau Kin-leung left Room A, Flat B, 1st Floor, Sheung Heu Building, 96 Ting On Street (hereafter “the premises”) and boarded a taxi bearing registration JX5174.
Police officers followed the taxi which was driven to Yau Tong in the direction of Sau Mau Ping. At about 6.55 pm, Sergeant 51369 stopped the taxi. Police officers then approached the taxi to make enquiries. Mr Lau was sitting on the left-hand side of the rear passenger seat holding a white paper bag which is Exhibit P1. Ms Chu was sitting on the right-hand side of the rear passenger seat.
Mr Lau was asked by the police to leave the taxi for a search. The white paper bag (Exhibit P1) was found to contain:
(1) a white tissue paper wrapping a transparent resealable plastic bag containing suspected dangerous drugs (Exhibit P2); and
(2) a transparent plastic bag with the numbers “25.96” containing suspected dangerous drugs (Exhibit P3); and a transparent resealable plastic bag marked with numbers “25.99” which was Exhibit P4.
Shortly thereafter, a police constable conducted a body search on Mr Lau and found four keys, some cash, a mobile phone and a mobile charger. Mr Lau was arrested by that officer for trafficking in dangerous drugs. He was cautioned. In response to the caution, Mr Lau said “I have nothing to say.”
Ms Chu was arrested by another police officer and in response to a caution administered to her, said “I know nothing at all.” A body search was conducted by an officer and a small amount of cash, a mobile phone and a SIM card were found on her.
Photographs were taken of the items seized from both of them.
Mr Lau and Ms Chu were escorted to Sau Mau Ping Police Station accompanied by exhibits, in particular Exhibits P2, 3, and 4 which were found inside the white bag were shown to the Duty Officer, weighed and sealed.
At 9.57 pm, Mr Lau and Ms Chu was taken by the police to the premises. The purpose of being taken there was to conduct a house search pursuant to a search warrant. Keys seized from Mr Lau were used to gain access to the premises.
Inside the premises, a round shaped container (Exhibit P6) was found and inside that container a series of exhibits were seized in the presence of Ms Chu and Mr Lau. The exhibits were:
(1) a transparent resealable plastic bag containing suspected dangerous drugs, that was Exhibit P7;
(2) a transparent resealable plastic bag with the numbers “25.91” containing suspected dangerous drugs, that was Exhibit P8;
(3) a transparent resealable bag marked with the numbers “26.07” containing suspected dangerous drugs (Exhibit P9);
(4) a transparent resealable bag marked with the numbers “26.01” containing suspected dangerous drugs, that is Exhibit P10;
(5) a transparent resealable plastic bag with the numbers “25.93” containing suspected dangerous drugs, that was Exhibit P11;
(6) a transparent resealable plastic bag with the numbers “25.98” containing suspected dangerous drugs (Exhibit P12);
(7) a transparent resealable plastic bag containing suspected dangerous drugs (Exhibit P13);
(8) some transparent plastic resealable bags with a redline containing some transparent resealable bags also of a redline, that was Exhibit 14;
(9) a transparent resealable plastic bag containing some further resealable plastic bags (Exhibit 15); and
(10) finally, (Exhibit 16) a digital scale.
Photographs were taken by the police of the suspected dangerous drugs at the premises.
At 12.37 am on 27 November 2018, Mr Lau and Ms Chu were taken to Sau Mau Ping Police Station accompanied by the exhibits seized at the premises. At the police station, the exhibits were weighed and sealed in the presence of the Duty Officer.
Exhibits P2 to P4 and P7 to P13 were kept in proper custody and conveyed to the government laboratory for examination. They were examined by the government chemist. Exhibits P2 to P4 were found to contain a total of 71.7 grammes of a solid containing 30.8 grammes of cocaine. Exhibits P7 to P13 were also examined. Exhibits P7 to P12 were found to contain 143.6 grammes of a solid containing 60.5 grammes of cocaine. Exhibit P13 was found to contain 1.75 grammes of a powder containing 0.63 grammes of cocaine. In total, Exhibits P7 to P13, the total contents so far as cocaine was concerned was 61.13 grammes.
The street value of cocaine at the time of seizure was, if sold as powdered cocaine, $1,193, if the cocaine was sold as crack cocaine, the street value was $1,641. Accordingly, the drugs seized were of a substantial value.
Procedural Matters
Both Mr Lau and Ms Chu were charged and appeared in court. Eventually they are both charged with trafficking in dangerous drugs. Charge 1 alleged trafficking in 71.7 grammes of a solid containing 30.8 grammes of cocaine which was the charge in the taxi. And in relation to Charge 2, an allegation of 143.6 grammes of a solid containing 60.5 grammes of cocaine and 1.75 grammes of a powder containing 0.63 grammes of cocaine. In Charge 2, the total weight of cocaine was 61.13 grammes. Ultimately, on 3 August 2020, in committal proceedings, Mr Lau and Ms Chu appeared before Mr Cheang Kei-hong siting as a permanent magistrate in the Eastern Magistrates’ Court. Mr Lau pleaded guilty to both charges and admitted the Summary of Facts which appears in the papers. The learned magistrate committed him to this court for sentence. I am also informed today and I accept that his assistance to the police occurred before he was committed, indeed, well before.
Ms Chu did not plead guilty. She was committed to this court for trial. An indictment was filed on 17 August 2020. The matter was set down for trial. The indictment called upon her to answer on 23 November 2021. On that date, Ms Chu did not appear and a warrant for her arrest was issued. She was apprehended shortly after that and was brought to this court on 25 November 2021. The court ordered that she be remanded in custody. Prior to that, she was on bail.
Arrangements were made through the court’s staff for her to contact the Director of Legal Aid to arrange legal representation. That would become necessary because when the matter was called on for hearing on 23 November 2021, counsel and solicitors then representing her sought their discharge. That application was granted. The matter was listed for 26 November 2021, at which time as a result of the considerable industry of the Director of Legal Aid, the original counsel and solicitors who had earlier been discharged had been retained. At that stage, counsel informed me that preparations for the trial were underway and an adjournment to 29 November 2021 was ordered. On that date, the court was informed that there were discussions underway. The clear implication of what was said that a change of plea on the part of Ms Chu was contemplated. That materialised on 30 November 2021.
On that date, the 2nd count on the indictment was put to Ms Chu. She pleaded guilty to that charge. The Summary of Facts which was reflected in the outline earlier recited was put to her and she admitted that summary. She was, accordingly, convicted of Count 2. So far as Count 1 is concerned, by agreement between the parties, the order of the court was that this charge lie on the court file, not to be proceeded with without the permission of the judge of the Court of First Instance.
Antecedents and Mitigation
Ms Chu
Ms Chu was born on 27 June 1990. She is now 31 years of age. Prior to her arrest, she lived with her mother and younger brother in Sha Tin. Her mother is 49 years old and her father 56. Her younger brother is aged 27. The parents and her brother are all in employment. Nevertheless, she came from a broken family. In 2004, her parents divorced. At that time, she was 14 years of age. She lived with her father following the breakup of the marriage and her brother lived with her mother. In summary, it was not a very harmonious or happy time.
Ms Chu has education only up to Form 2 level. It appears she has some learning difficulties which may explain that issue. She spent some time in a school for students with special needs. Between 2008 and 2017, she worked as a salesperson in a beauty shop and in 2018, she worked as a saleslady. At that stage, her monthly income was about $15,000.
In 2018, she returned to live with her mother and younger brother. She was also married but her husband and her separated after the husband returned to the mainland.
She formed a relationship with Mr Lau and they commenced the relationship of boyfriend and girlfriend. She claims that she was under the influence of Mr Lau throughout and indeed he became involved in unlawful activities. She relied on him financially and she received no direct monetary benefit from his criminal conduct. She had no other income when she was with Mr Lau.
Ms Chu has a criminal record. In 2009, she was convicted of theft and sentenced to 2 months’ imprisonment. The sentence is one which under the Rehabilitation of Offenders Ordinance is regarded as spent and is treated accordingly. In 2017, she was convicted of burglary before the District Court. She was sentenced to an overall term of imprisonment of 23 months.
Mr Lau
Mr Lau is a 28-year-old man and was born in Hong Kong. He is a holder of a permanent ID card. At the time of his arrest, he was employed as a dock worker. He also has an education standard of Secondary 2. He is single although I accept that he and Ms Chu had a close relationship. He has a poor criminal record and that is exclusively connected with dangerous drugs. The number of charges of possession of dangerous drugs is indicative of the observation in the antecedents report that he is a drug addict. There are a substantial number of charges of possession of dangerous drugs. There is also a conviction in 2003 for trafficking in dangerous drugs. In respect of that, the accused was sentenced to 5 years and 4 months’ imprisonment.
He committed this offence, so his counsel tells me, for economic reasons. He expected a substantial amount of money which was to go to family support. I draw the inference that he is a filial son to his parents.
Sentencing Principles
Starting point - Trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to cocaine. These particular drugs have terrible consequences for the individual. Ridding oneself of an addiction to cocaine is, to say the least, an arduous process and sadly, history demonstrates that attempts are often fraught with instances of disappointment.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and community take in relation to trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including cocaine, which is, of course, the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. In the Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685. The Court of Appeal declared the guidelines in R v Lau Tak Ming and Others (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed by the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 43.
The guidelines set by our courts for trafficking in 30.8 grammes of cocaine places the accused in the sentencing range appropriate for 10 grammes to 50 grammes which would attract a sentence of between 5 and 8 years. The guidelines set for trafficking in 61.13 grammes of cocaine place the defendant in the sentencing bracket for quantities between 50 grammes and 200 grammes and the relevant sentencing range is 8 to 12 years’ imprisonment. That is the sentence which would be imposed following a conviction after trial.
Discount for Plea of Guilty
The well-accepted sentencing principles recognise that where an accused person pleads guilty at the earliest practicable moment, a discount from the appropriate starting point of 33 per cent would be applicable.
Circumstances Applicable to Ms Chu
The position is different in relation to the discount which might be accorded to a person who pleads guilty at a later stage. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 , the Court of Appeal conducted a principle review of the nature of the discount from the sentence appropriate for a person who is convicted after trial to be accorded to a person who pleads guilty. As noted already, the Court of Appeal held that where a person pleads guilty at the earliest practicable moment, a discount of 33 per cent would ordinarily be accorded to such person. The court also considered two other scenarios. One scenario was where the accused had been committed for trial to this court but then pleaded guilty before the matter was listed for trial. The court suggested in that circumstance, a discount of 25 per cent from the appropriate sentence for a conviction after trial would be appropriate. The second scenario mentioned in Ngo Van Nam (above) was a plea of guilty on the first day of trial. The suggested discount for such a situation was 20 per cent.
The Court of Appeal also indicated a sentencing judge has an overriding discretion in determining whether to accord some form of discount and, what that discount might be. The present set of circumstances does not align with these scenarios contemplated by the Court of Appeal. The determination of what the appropriate discount is in the present situation must be derived by the use of analogy to the circumstances contemplated by the Court of Appeal and the consideration of the underlying purpose for the discount. So far as the underlying purpose of the discount is concerned, the principal focus of the Court of Appeal was that such a discount reflected the pragmatic concern to encourage an early plea to reduce pressure on court time and resources. The court held that the issue of remorse was largely subsumed in the suggested discounts.
Circumstances Appropriate to Mr Lau
The position in relation to Mr Lau is that beyond the 33 per cent ordinarily accorded to a person who pleads guilty at the earliest practicable moment is his assistance to the prosecution.
It has always been the position at common law that an offender convicted of crime will receive credit against his sentence for any assistance which has been rendered to law enforcement agencies and the authorities for that are Z v HKSAR [2007] 10 HKCFAR 183, 1 HKLRD 977, 2 HKC265, R v AXN [2016] EWCA Crim 590, [2016] 1WLR 4006, [2016] 2 Cr App R(S) 33 and the principles were articulated in Z v HKSAR where Li CJ held:
“It is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant has given to the authorities and usually to give an appropriate reduction from the sentence which the defendant would otherwise have received. The assistance is most often given by the defendant after his arrest for the offence for which he is being sentenced (“post-arrest assistance”). There may be occasions where the assistance is given by the defendant before his arrest.”
And then Li CJ gives the rationale for the policy is:
“The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society's fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.
The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts' approach in this regard is a pragmatic one.”
Li CJ held that in order to obtain a recognition by way of reduction of sentence, the assistance should be “useful assistance”. In this regard, Li CJ suggested that the courts look into a number of factors including:
“The nature and extent of the assistance. In relation to this, matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and usefulness of the information and the extent to which it could potentially assist or had actually assisted the authorities; and whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.”
Li CJ also suggested a range of possible discounts and he held:
“...where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50 per cent (including the one-third reduction for pleading guilty).”
To provide some context, there are also very rare circumstances where a person is characterised as a “super-grass” who might receive as much as two-thirds off his sentence. In HKSAR v Cheung Chi Yuen [2018] 2 HKLRD 1396, the Court of Appeal set out the considerations for that
“25. From the comments in these cases and other judgments where the characteristics of a supergrass have been discussed, it can be said that in order to qualify as a supergrass:
(1) the assistance provided by a defendant must relate to crimes of great gravity;
(2) the nature of the defendant’s assistance must be significant. It must be significant in the sense that it can be said of the assistance, where the defendant does not testify, that it is a key reason why other offenders are brought to justice; or, where the defendant does testify, that his evidence was a crucial part of the prosecution case. Often it will be able to be said that without the defendant’s assistance the particular crime would have gone undetected; the particular offenders would have gone unidentified or that the particular criminal activity would have gone un-prosecuted;
(3) the assistance itself must also be substantial. For example, the assistance may be on-going over a period of time and may involve multiple acts of assistance such as the giving of statements, the participation in identification parades and the testifying in multiple trials including re-trials;
(4) the assistance will often expose the defendant, or his family or others close to him, to the risk of harm. Although this is commonly encountered as a feature of the supergrass it is not a prerequisite. Where it is encountered, then clearly the greater the risk of harm, and the more serious the harm to which the defendant and/or those close to him are exposed, the more likely it is that the defendant will fall into the supergrass category.
26. When determining whether a defendant falls into the supergrass category the sentencing court must consider the evidence in the round, having regard to all the matters we have set out above, but remembering that to qualify for a two-thirds discount there must be present features that distinguish the defendant from the normal cooperating accomplice who testifies against his co-accuseds. The true supergrass is an exceptional category of cooperating defendant who has been described as being “extremely rarely encountered.”
Against that, it is recognised that assistance such as controlled deliveries, even where they fail, is deserving of recognition by way of discount above and beyond the ordinary 33 per cent. Generally speaking, the maximum in that context is about 40 per cent.
In this case, Mr Lau was prepared to testify against Ms Chu and, indeed, was scheduled to do so as the first prosecution witness at her trial. Her plea of guilty obviated the necessity for his testimony. I am informed by the prosecution that they regarded his assistance as substantial and that his witness statement is true.
Role of the Accused
It is critical to determine the role of the accused in the crime, for that you can see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974. In that case, the Court of Appeal recognised that although the analytical starting point for the sentencing guidelines for drugs such as cocaine start on the premise of the sentencing for a courier or a storekeeper, the court indicated there could be a range of culpability even if the trafficker is characterised as a keeper or courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
The Court of Appeal identified six analytic steps:
(1) identify the seriousness of the offence by reference to the relevant sentencing band applicable;
(2) assess the culpability of the accused by reference to the evidence and circumstances. In this regard, the court recognised a wide range of culpability where the courier or storekeeper rank at the lowest level of this hierarchy;
(3) consider whether it is necessary to go above or below the arithmetic calculation within the guidelines applicable to the narcotic amount the subject of the charge. In this regard, if, for good reason, the sentencer may consider it is appropriate to fix a starting point above or below the arithmetic calculation or, indeed, outside the relevant sentencing guideline;
(4) the relevant factors including the fixing of the starting point may also take into account aggravating factors;
(5) determine whether the usually applicable discount for a plea of guilty should be modified;
(6) look at the sentence overall to see whether it met the justice of the case, taking account of the overall criminality of the accused.
Application of Sentencing Principles
Position of Ms Chu
The mathematical calculation within the relevant sentencing band for trafficking in 61.13 grammes of cocaine produces a sentence of 8 years and 3 months. There is little real evidence to determine the culpability of the accused for the trafficking in that 61.13 grammes of cocaine. There is material in the premises which is highly suggestive of those premises being used to pack cocaine. In this regard, I refer to the multiple resealable bags and the electronic scale. Whether it was doing the packing or was preparing to do the packing is not clear on the evidence. It could have been Ms Chu. Against that proposition, it was Mr Lau who had the keys to the premises. The Summary of Facts provides no specific assistance on the topic. In paragraph 17 of the Summary of Facts accepted by Ms Chu, it says that Ms Chu “now accepts and admits that on 26 November 2018 together with Mr Lau, she unlawfully trafficked in a dangerous drug”. That is of no specific assistance as to the role of Ms Chu.
I am prepared to accept the assertion and mitigation that Mr Lau was the dominant person in the relationship. I think it is highly likely that she was blinded in her judgment by that fact and by love. She was, nevertheless, trafficking in a dangerous drug. I propose to adopt a slightly lower starting point to recognise this dominance and the relationship between Ms Chu and Mr Lau. I propose to reduce on that account the starting point to 7 years and 6 months.
I accept that the accused is truly remorseful now. In her mitigation letter, she expresses her regret and then says “that is why I took the initiative and admitted my wrongdoing and to shoulder the responsibility”. Well, she has taken a very long time to come to that position. Indeed, she has been on bail since 28 November 2018.
There was, following the filing of the indictment, a management hearing of the case on 30 July 2021 and there was nothing which suggested that Ms Chu was considering taking responsibility for her conduct. I was informed by her counsel that since about October, she has not been attending discussions for preparation of the case. There is also a suggestion that she was not reporting for bail. A condition of her bail was daily reporting to a police station. There is no specific evidence on when she stopped reporting to the police. As I have already indicated, she did not attend on the date appointed for her arraignment. She was apprehended once the court issued a warrant for her arrest. Accordingly, the assertion by Ms Chu of taking initiative and shouldering responsibility has to be taken with something of a large grain of salt. A highly respectable view of the matter is that if this was her position, the time for taking the initiative and shouldering the responsibility was at the time of committal. However, another view is that this woman who for quite some time was for some reason also almost certainly because of fear, her facing up to responsibilities. It is not easy to resolve those two positions and, many instances they are irreconcilable. I incline towards the latter view.
Clearly, Ms Chu did not shoulder her responsibility on the first day of trial. I strongly suspect that her non-attendance on that date was simply an inability to come to terms with her situation and face up to reality. That is something which is seen in some people. The reaction is regrettable and has actually caused court time to be lost. That court time is part of the public resources but, the reality is that it was caused in her case by an all too human failing. Accordingly, in the context of what discount to accord to the accused for her belated plea of guilty, I do not think it is appropriate to hold her human failing against her.
That leaves the question of what discount is appropriate. I think it is likely I will be accused of being over-generous but I propose to discount the appropriate starting point by 22 per cent.
Position of Mr Lau
Mr Lau pleaded guilty at the earliest practicable moment to both charges on the charge sheet. On the mathematical calculation of the guidelines for the quantity of 30.8 grammes of cocaine, so far as the 1st charge is concerned, that results in a starting point of 6 years and 7 months. In relation to the application of the mathematical guidelines for 61.13 grammes of cocaine, the starting point as indicated above, in relation to the position of Ms Chu, is 8 years and 3 months. The possession of the drugs and the trafficking in them were very close in time although in different locations. I think that an overall sentence crafted to reflect the total amount of narcotic would be a just approach. That would involve 91.93 grammes of cocaine. On a mathematical application of the guidelines, that would put the total in 8 years to 12 years sentencing bracket, resulting in a sentence of 9 years and 1 month. Although it will be necessary to sentence Mr Lau on separate counts, the underlying premise of the ultimate sentence is to achieve a totality in sentence which would reflect that amount of cocaine.
As to the role of the accused, I am sure he was the organiser of this trafficking venture. I see no basis on which he should be sentenced with other than an application of the mathematical outcome of the quantity of cocaine in respect of the guidelines. His drug history is strongly supportive of that proposition.
The real issue for Mr Lau is his assistance to the authorities. He has provided witness statement and has indicated a willingness to testify. I am informed and I accept he would have testified but for the fact that Ms Chu pleaded guilty when she did. While, as I have said, I am perfectly prepared to accept the remorse, I am in no doubt that the fact that Mr Lau was prepared to testify against her was relevant to her decision-making. In my opinion, his testimony was likely to be accepted by the jury as true. The question remains what discount to accord to the accused. In my opinion, his assistance and preparedness to testify places him well above the 40 per cent bracket. I am minded to accord to him a discount of 50 per cent because of his assistance.
On the premise of assistance 50 per cent in relation to Charge 1, the appropriate discounted sentence would be 3 years and 3 months. On the same premise, in relation to Charge 2, the discounted sentence would be 4 years and 1 month. If the whole of the cocaine have been brought as one charge, the discounted sentence would have been 4 years and 6 months.
Resolution
In relation to Ms Chu, for the reasons I have outlined, the sentence I impose on Count 2 is 6 years and 2 months.
In relation to Mr Lau, after discount on Count 1, it is 3 years and 3 months. The sentence on Count 2 is 4 years and 1 month. In order to achieve totality, which would be appropriate on the basis of the cocaine in both charges is combined, I order that 5 months of the sentence in Count 1 be served consecutively to the sentence on Count 2 and the balance to be served concurrently.