HKSAR v. Lee Kin Ho

HCCC 263/2020 & HCCC 346/2020
(Heard together)

[2022] HKCFI 3726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 263 AND 346 OF 2020

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: I have before me two separate case file numbers which is HCCC 346/2020 and HCCC 263/2020. The defendants in each case were originally charged together for trafficking in dangerous drugs and the defendant Lee Kin-ho in 263 was charged with an additional charge of conspiracy to traffic.

The defendant, Chan Yiu-chung, in 346 had pleaded guilty before a magistrate at the first opportunity whilst Lee Kin‑ho had pleaded not guilty. He however has changed his plea to one of guilty to both charges.

With the agreement and consent by Mr Chan’s counsel, Mr Phil Chau, SC, and Mr Lee’s counsel Mr David Boyton, and of course the prosecution counsel on fiat, Mr Adonis Cheung, they have agreed that I deal with both defendants’ sentences at the same time. This is a sensible approach to take as the defendants’ charge and facts arise out of the same matter.

First of all, I turn however to deal with Chan. Chan pleaded guilty on 21 December 2020 to a charge of trafficking in dangerous drugs before a magistrate sitting at the Eastern Magistracy. Lee pleaded guilty to the same charge before me today in HCCC 263. Lee also pleaded to an additional charge of conspiracy to traffic in dangerous drugs before me today.

The Summary of Facts admitted by both defendants are slightly different but the material and significant facts are similar. The 1st count of trafficking to which Lee was charged is the same count as Chan’s count of trafficking in dangerous drugs. Lee and Chan both admitted that on the 27th day of May 2019 at a flat at Nos. 92-98 Fuk Wing Street, Sham Shui Po on the 8th floor, together unlawfully trafficked in 21.69 grammes of a crystalline solid containing 21.58 grammes of methamphetamine hydrochloride and 2.62 grammes of a solid containing 2 grammes of cocaine.

The 2nd count to which Lee pleaded guilty was to a conspiracy to traffic in dangerous drugs. Lee admitted that between a day on or about 13 May 2019 and the 27th day of May 2019, both dates inclusive, in Hong Kong, conspired together with Chan Yiu-chung, to unlawfully traffic in dangerous drugs, namely cocaine. Chan is, of course, the other defendant in this case.

The facts can be simply stated that on 27 May 2019, police conducted an anti-narcotics operation in the building at Nos. 92-98 Fuk Wing Street, Sham Shui Po. There they laid ambush between the 8th and 9th floor for observation. At about 7 pm on the same day, they saw Lee opening the iron gate and door of Flat H on the 8th floor. The police intercepted Lee and they together entered the flat. Inside the flat, Chan was sitting on a sofa whilst his fiancée was sleeping in a bedroom. The police disclosed their police identity.

Inquiry revealed that Chan was the tenant of the flat whilst Lee was his friend. The police at that time were armed with a search warrant and executed the search warrant in the flat.

In the other bedroom not where the fiancée was sleeping, the drugs as I have stated in Count 1 were found. Also found was an electronic scale, forceps, scissors and some further many resealable plastic bags containing traces of dangerous drugs.

Both defendants were arrested for trafficking in dangerous drugs and under caution, Chan said that the drugs, ‘Ice’ and cocaine, were for his own consumption. Under caution, Lee said he had helped Chan to deliver drugs to the buyers.

The street value of the methamphetamine, otherwise commonly known as ‘Ice’ and cocaine seized in May 2018 was around $12,265 for the ‘Ice’ and $3,385 for the cocaine.

Chan and Lee now, through their pleas of guilty, admit that they unlawfully trafficked in those dangerous drugs. As for Lee, in respect of Count 2 of conspiracy to unlawfully traffic in drugs, he was trafficking in drugs but not including the subject drugs in Count 1.

Mr Phil Chau, SC, represents Chan and Mr David Boyton represents Lee. I have taken into account their submissions in mitigation.

As for Chan, he is now 36 years of age, educated up to Secondary level 3 and is a drug addict. He has 11 previous convictions, mostly for driving offences but one related to dangerous drugs, possession, some five years ago to which he was fined $1,000.

As for Lee, he is of a clear record, educated up to Secondary 5 and is a drug dependent on ‘Ice’ and is aged 39. Lee was unemployed at the date of his arrest and Chan was a waiter.

The case involves trafficking in the drugs ‘Ice’ and cocaine, I will call it the joint charge of trafficking, that is 21.58 grammes of ‘Ice’ and 2 grammes of cocaine. The relevant guideline case in respect of trafficking in the drug ‘Ice’ is Tam Yi Chun. For the amounts of 21.58 grammes, it falls in the bracket of 10 to 70 grammes which is 7 to 11 years’ imprisonment after trial.

For trafficking in cocaine, the relevant guideline case is that of Lau Tak Ming. For trafficking in those amounts, it is about 2 to 5 years’ imprisonment. The bracket falls within 2 to 5 years.

There are two different kinds of drugs in this case. I therefore take the combined approach and will convert the cocaine into ‘Ice’. For 2 grammes of cocaine, had the defendant been convicted after trial, an appropriate sentence would be one of 2 years 6 months’ imprisonment. In converting that to ‘Ice’, it is insignificant and I shall add nothing as it will be insignificant in terms of ‘Ice’ sentencing and add nothing more to the already 21.58 grammes of ‘Ice’. I therefore take the starting point for trafficking in that amount of ‘Ice’ to be one of 7 years and 6 months’ imprisonment.

Defendant, Chan, you pleaded guilty at the first and the earliest opportunity and therefore the one-third discount applies to you. Taking that starting point of 7 years 6 months, you are sentenced to 5 years’ imprisonment. There are no aggravating or mitigating circumstances.

In respect to Lee, you did not plead guilty at the first opportunity. You therefore should not be awarded the one‑third discount. The case management hearing for your case was originally on 25 November 2021 and the trial date was set down for 20 April 2022. However because of the intervening COVID, your case was vacated and re-fixed to 14 March 2023.

After this case was re-fixed on 11 April 2022, your solicitors, Lee’s representatives, wrote to this court and told the court that you would plead guilty to the two charges.

For the purposes of the sentence, I can take a discount of between 20 and 25 per cent. 20 per cent is on the lower side because of course you did not enter your plea on the first day of trial. In this instance, you have pleaded guilty before your re-fixed date, four months before your re-fixed date of trial. In the circumstances of this case, I do agree that you should be awarded a 25 per cent discount as is submitted by your counsel, Mr Boyton.

Mr Boyton has submitted to me, though not with much persuasion, that you should be granted a further discount for consumption, self-consumption and delay. As can be seen from the facts, the reason why you trafficked or assisted in trafficking in drugs is so that you would be given free ‘Ice’ to consume.

As is clear from the authorities and that of which Mr Boyton himself admitted, a discount should only be given for self‑consumption where a significant amount of the drugs is for self-consumption. It is not urged upon me nor am I persuaded that a significant quantity of the drugs ‘Ice’ were for your own consumption. I therefore do not consider there should be any discount for self-consumption.

As for the discount for delay, the delay as your counsel Mr Boyton says was through no fault of the court or yourself, it was a result of the pandemic, COVID, and this does not mean that you should receive any discount for delay. In the circumstances, the only mitigation factor for you is that of your plea of guilty.

You were a courier in this case and I take the same starting point as I do for Chan of 7 years and 6 months’ imprisonment. Giving you a discount of 25 per cent for your plea of guilty, that sentence shall be reduced to one of 5 years and 7 months to which you shall so serve.

In respect of Charge 2, a conspiracy to traffic in dangerous drugs, you were charged with conspiracy to traffic in the drug cocaine and not the cocaine that was found in the flat. There is no evidence as to what amount of cocaine you had previously trafficked in. However, what evidence there is is the small amount of cocaine in the flat found on the 27th and I take this as a ballpark for a broad-brush figure to which you were trafficking in.

Upon your admission, you had trafficked twice previously in the two weeks before you were arrested. This charge arose out of your own admission to trafficking. For this charge of conspiracy to traffic, I take the base of 2 grammes of cocaine. Had you been convicted after trial, an appropriate starting point would be one of 2 years 6 months. Giving you the 25 per cent discount, you shall be sentenced on that charge to 1 year and 10 months’ imprisonment.

Lee, in sentencing you for both counts, I must consider the principle of totality. Taking into account the principle of totality in this case, given the small amount of drugs that was involved, the fact that the charge arose out of your own admission to which the police would not have known had you not admitted the fact, I consider the appropriate sentence to be one of a concurrent sentence with Charge 1.

The total sentence you shall serve is one of 5 years and 7 months’ imprisonment.