HKSAR v. Lau Wing Pong

HCCC 101/2023

[2024] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 101 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.Defendant pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance.  Defendant admitted that on 24 December, 2020, he unlawfully trafficked in a dangerous drug, namely 1,866 grammes of a liquid containing 908 grammes of cocaine.

2.This plea was entered at Eastern Magistracy on 17 April 2023 and he was committed to the Court of First Instance for sentence.

Facts

3.The defendant arrived at Hong Kong International Airport from Sao Paulo, Brazil via Netherlands on 24 December, 2020 and at about 20:35 hours, he passed through the green channel of the Customs Arrivals Hall with one orange suitcase (check-in baggage).

4.After X-ray screening of the defendant’s suitcase, the custom officers led the defendant to a counter for further baggage examination.  Upon enquiry, the defendant confirmed that the suitcase belonged to him and the baggage tag on the suitcase matched with the defendant’s name shown on his passport.

5.Upon search, the customer officer found, at the bottom of the suitcase, a wet green plastic bag containing 3 black plastic bottles and 3 white plastic bottles (purporting to be water sprayer of barber shop, and shampoo and conditioner).  The condition of a bottle raised suspicions of a Customs officer. Therefore, an expresss narcotic test was conducted on the liquid inside one of the said black and one of the said white bottles respectively which revealed a positive result for cocaine.

6.The defendant was arrested and cautioned.  He replied that he did not know what was inside the bottle.  He explained that the six bottles of items were given to him for taking back home by a friend.  He did not have a reward for brining those bottles of items for his friend and he would take them to his home.  In the video-recorded interview, the defendant refused to answer questions.

7.The defendant’s mobile phone was seized and examined.  There were WhatsApp messages between him and other persons, which the topic of engagement in dangerous drug activity was mentioned and he was reminded to be careful. The defendant also appeared to have reported about his progress at intervals upon arrival at Hong Kong.  Some photos or screen captures showing paraphernalia such as electronic scale, electric cooker, pot and sealer, screen capture of web page about the nature of cocaine etc., were also found.

8.The record showed the defendant departed from Hong Kong at 1911 hours on 21 November 2020 and arrived at Hong Kong at 2029 hours on 24 December 2020

9.The liquid was analysed by the government chemist and the certificate confirmed they contained 908 granmees of cocaine.

Mitigation

10.The defendant is now 33 and is single.  He lives with his parents and an elder brother in a public housing estate in Kwai Shing, New Territories before his arrest.  He was born and educated in Hong Kong.  After completing F.4, he joined the work force and worked as a lorry attendant and a store keeper.  At the time of the offence, he was a lorry attendant earning around $14,000 per month.

11.Ms. Lee, counsel for the Defendant, informs the court that after the defendant had separated with her girlfriend, he indulged in bad habits such as drinking and even started taking cocaine and he became addicted. He nearly spent $10,000 per month to feed his vice habit.  He borrowed $50,000 from a friend known as Hang Chai and he was unable to repay the debt.  Hang Chai later asked the defendant if he was willing to go to Brazil bringing dangerous drugs back to Hong Kong and he would be given a $100,000 reward.  In order to settle the debt, the defendant took up the assignment.  He is now remorseful and that is reflected by his plea.  His best mitigation is his plea of guilty.

12.Today, I have a letter from the defendant which expresses his own heartfelt remorse and apology and also a letter from his social worker, Mr Tong who spoke of the defendant’s low-self image and participation in voluntary work and urged the court to pass a proper but compassionate sentence to the defendant.

Consideration

13.In sentencing the defendant, I have considered the nature of the dangerous drugs involved, the quantities of the drugs, the sentencing authorities, the facts of the case, the background of the defendant, the mitigation letters placed before me, and all the matters urged on the defendant’s behalf by his counsel.

14.Trafficking in a dangerous drug is a serious offence.  On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.  Those who are convicted of this offence will be severely punished by the court.  Generally, the court will not accept economic reasons for committing crime and family circumstances virtually play no part in mitigation in serious offence such as the present.  In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstance were of far less importance than the sentencing principles of denunciation, deterrence and punishment.

15.I have considered the approach to the sentence of trafficking drugs as laid down by the Court of Appeal in Herry Jane Yusuph (supra.).  I have considered the six-steps sentencing approach set out in that authority. In this case, I accept and am satisfied the defendant was only a courier, therefore his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.

16.The sentencing guidelines for cocaine can be found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370.  Although that authority involved heroin, the Court of Appeal has ruled that those guidelines also apply to cocaine.  In that authority, however, the guidleline provided is only up to 600 grammes.  Later in HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal modified the guideline and said where between 600 to 1,200 grammes of narcotics are trafficked, a starting point of between 20 to 23 years would be appropriate.  Mathematically speaking, 908 grammes of cocaine attracts a starting point of 21 years and 6 months.

17.In this case, the cocaine was imported from Brazil into Hong Kong by the defendant.  It is well established that where an international element arises from the facts of a trafficking in a dangerous drugs offence, it constitutes an aggravating factor.  I have been referred to HKSAR v Chung Ping Kun [2014] 6 HKC 106.  The Court of Appeal laid down some guidelines on enhancing sentence for the international element where the quantity of dangerous drugs is under a thousand grammes.  The Court of Appeal said that where there is between 500 and 1000 grammes involved, then an enhancement of between 1 year to 2 years is appropriate.

18.Ms Lee has said all she can say on behalf of the defendant.  As I have said, the defendant’s best mitigation is his plea of guilty.  His personal circumstances and his clear record in Hong Kong do not amount to any significant mitigation for an offence of such gravity, none that would or should attract any additional discount.

19.After careful consideration of the facts, mitigation, tariff guidelines and the aggravating factor of an international element, I will take a starting point of 21 years and 6 months which I enhance by 1 year and 9 months to reflect the international element of importing that amount of cocaine into Hong Kong.  The starting point becomes 23 years and 3 months.

20.The defendant is entitled to a discount of one-third for his plea at the earliest opportunity.  After that discount is applied, the sentence is reduced to a term of imprisonment of 15 years and 6  months.

21.Lastly, I have taken into account the sixth and last step of Herry Jane Yusuph (supra.) which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender and to ensure that it is not a crushing sentence.

22.Here, in approaching this principle, I have weighed it against the sentence of 15 years and 6 months’ imprisonment, the quantity of drugs and the facts of the case. Standing back, it is no doubt a significant term of imprisonment and a harsh sentence especially for a man with a hitherto clear record.  For this reason, I finally decide to exercise my discretion and to reduce the overall sentence further by 3 months to 15 years and 3 months’ imprisonment.

Mr. Marcus Lee Cheuk-wing, Senior Public Prosecutor of the Department of Justice, for HKSAR

Ms. Lee Shin-man Cindy, instructed by SSW & Associates, for the accused