HKSAR v. Lee Wai Lok

HCCC 370/2023

[2024] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 370 OF 2023

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

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COURT: The defendant pleaded guilty to two counts of trafficking in a dangerous drug and one count of conspiracy to traffic in dangerous drugs on 13 November 2023 in the Magistrates’ Court and was committed to the Court of First Instance for sentence. He now confirms his pleas and admission of the Summary of Facts.

The particulars of the 1^st count are that the defendant unlawfully trafficked in a dangerous drug, namely 1.83 grammes of a solid containing 1.34 grammes of cocaine outside Yi Lai House, Yau Lei Estate, Yau Tong, Kowloon, on 2 December 2021.

The particulars of the 2^nd count are that the defendant unlawfully trafficked in dangerous drugs, namely 42.67 grammes of a solid containing 31.52 grammes of cocaine, 6.16 grammes of a solid containing 0.34 grammes of methamphetamine and 4.91 grammes of ketamine, and 8 tablets containing 0.92 grammes of ‘Ecstasy’ in Unit 510, 5^th Floor of the same house at the same housing estate on the same day as Count 1.

The particulars of the 3^rd count are that the defendant between early November 2021 and 2 December 2021 conspired together with a male nicknamed Sweet Potato, in Hong Kong, to unlawfully traffic in dangerous drugs, namely cocaine and ketamine.

The Facts of the Case

At around 10.30 pm on 2 December 2021, police officers conducting an anti-narcotics operation in the vicinity of Yi Lai House, saw the defendant walk out of that house and approach a private car parked nearby. The defendant handed something to a person in the front passenger seat. Immediately after that, the vehicle drove away and the defendant returned to Yi Lai House.

Suspecting that there had been a drug transaction, the defendant was intercepted before he entered Yi Lai House and the vehicle was intercepted before it left the estate. The person sitting in the front passenger seat was searched and the police found in his left hand one plastic bag containing five plastic bags containing a total of 1.83 grammes of a solid containing 1.34 grammes of cocaine.

Defendant was arrested for trafficking in dangerous drugs and under caution he said that ‘Sweet Potato’ asked him to deliver cocaine to that person.

The police escorted the defendant home to Unit 510 and in his bedroom they found all the drugs of Charge 2 in a paper bag. They also found paraphernalia associated with weighing and packing dangerous drugs into smaller resealable plastic bags.

When arrested and cautioned again for the drugs found at home, the defendant admitted he was acting under the instructions of a person called Sweet Potato and trafficking dangerous drugs.

Subsequently in a video-recorded interview, he expanded on his admission. Only one month prior had he been introduced to Sweet Potato and offered a job of repackaging drugs. Different people brought him drugs and he repacked them according to instructions from Sweet Potato. He estimated he had repacked cocaine about 10 times before his arrest. On each occasion, he would receive a bag of 24 grammes of cocaine and repackaged it before the drugs were collected or delivered by someone else.

He had been paid twice by Sweet Potato via Alipay. He had trafficked in some ketamine as well, according to instructions from Sweet Potato. On the day of his arrest, Sweet Potato had asked him to deliver five bags of cocaine to someone downstairs, the drugs of Charge 1.

The estimated street value of the cocaine in Charges 1 and 2 was $48,149 if in powder form and 78,365 if converted by someone into crack cocaine. The ‘Ecstasy’ tablets were valued at $464.

Mitigation

The defendant was only 16 at the time of his arrest, still a student and had a clear record. He is now 19 years old. He was living with his mother, elder sister, and younger brother. His father died in 2019.

Sadly, family life before the father’s death was tumultuous. The defendant had been physically abused by his father from a very young age, as had other members of the family. There was domestic violence which escalated over time and only ended when with the assistance of a social worker from the Social Welfare Department, the defendant’s mother was able to divorce her husband in or around 2012. By then, the damage had been done to this family.

In a letter, the defendant’s mother describes the defendant as being an introverted person with poor communication skills from being perpetually frightened of upsetting his volatile and violent father. His elder sister suffered from severe emotional problems and has been hospitalised. I will not go into details but what that meant is that the defendant’s mother had to spend more time with her daughter and give her more attention to the detriment of her two sons. His mother was unable to work and support the family because of her daughter’s mental condition.

This meant the defendant was left to his own devices and spent time without supervision. He hung around downstairs in his housing estate. He became a target for those that exploit young people with easy money offered.

After his arrest, the defendant told his mother that he wanted to make his own money to try and alleviate their family’s financial pressure as the older son. His mother is heartbroken and blames herself for failing to protect him.

I have also read a letter from the defendant who expresses genuine remorse. He understands now the harm dangerous drugs can cause to individuals and their families. At the beginning, he wanted to find work to make some money for the family and accepted a job offer. When he found out it involved dangerous drugs, he did not know how to extricate himself from the situation. Whilst on remand, he has trained in practical courses to improve his chances of a proper job after he has served his sentence.

I have also read a letter from his younger brother who said his older brother tried to take care of the family when his mother was absent, often visiting his sister at the hospital. He asks the court for leniency and is sure his older brother has learnt a bitter lesson.

There is also a letter from a social worker from the defendant’s school. She confirmed how the defendant was physically abused by his own father who had a problem with alcohol. In fact, the whole family suffered domestic violence and the police were called on many occasions. Eventually, the mother was able to move the children away and divorce her violent husband. Her letter is a tragic read of how much the defendant was affected by his father and by his upbringing.

There is also another letter from a social worker of a community support service or association who vouches for the defendant’s then immaturity, previous vulnerability, and now genuine remorse. The social worker has seen how the family have come together to support the defendant since his arrest. I have also today seen a letter from his cousin.

The defendant’s best mitigation is his plea of guilty at the earliest opportunity. I will take everything into account that I have read and heard in mitigation.

Trafficking Guidelines

I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In the approach to sentencing, a number of steps have been identified which the court should take such as assessing the gravity of the offence and applicable guidelines, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and defendant.

The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drugs seized and here there are several types. I intend to add the drugs of Charges 1 and 2 together, taking a global approach. I will consider the 3^rd charge, the conspiracy to traffic in dangerous drugs charge, separately.

I will also say from the outset that I do not intend to take into account this very small amount of methamphetamine.

In Charges 1 and 2, there is a total of 32.86 grammes of cocaine. When I add the ketamine and ‘Ecstasy’ together,

there is a total of 5.83 grammes of narcotics. I do that because the guidelines for trafficking both of these drugs are the same.

The sentencing guideline for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at those that traffic in heroin are equally to be applied in cases of those that traffic cocaine. The starting point for trafficking between 10 to 50 grammes will be between 5 and 8 years’ imprisonment. Mathematically speaking, the total weight of 32.86 grammes of cocaine alone will attract a starting point of 6 years and 9 months’ imprisonment.

The sentencing regime for trafficking in ketamine and ‘Ecstasy’ is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The starting point for trafficking between 1 to 10 grammes of narcotics will be between 2 to 4 years’ imprisonment. Mathematically speaking, the total weight here of 5.83 grammes will attract a starting point of 3 years and 1 month’ imprisonment.

Different approaches to sentencing arises when there are a cocktail of drugs involved. The combined approach here should apply, it normally produces a more realistic and fair sentence.

Since the most serious and largest quantity of narcotics here is cocaine, I intend to convert the ketamine and ‘Ecstasy’ into the equivalent of cocaine which is 3.58 grammes. Adding 3.58 grammes to 32.86 grammes will come to a total of 36.44 grammes which according to the authority above, will attract a starting point of 7 years’ imprisonment.

The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. I will proceed on the basis that he was acting as a storekeeper and a courier. I will determine the starting point of his overall sentence for Charges 1 and 2 from the relevant tariffs and the result of the conversion test.

This leads me to consider the third step of where within the guidelines the defendant should lie and accordingly I take a starting point of 7 years’ imprisonment for Charges 1 and 2.

The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. There are no aggravating factors. I know his background has been tragic and he was only 16 at the time of these offences, but the seriousness of these offences do not allow me to attach much weight to what I have heard and accept.

The defendant has pleaded guilty at the earliest opportunity and is entitled to a discount of one-third to reflect his plea. Accordingly, after that discount is applied, he will serve a sentence of 4 years and 8 months for both Charges 1 and 2 concurrently.

I now turn to the 3^rd charge, conspiracy to traffic in dangerous drugs. I have treated this separately to Charges 1 and 2 even though the defendant quantified the amount of cocaine he has trafficked on Sweet Potato’s instructions. No drugs were seized to prove Charge 3. I treated this charge separately because the quantity of drugs can only be loosely quantified as a result of a very frank and open admission from the defendant to the police.

He has said on 10 occasions he was given 24 grammes of cocaine to repackage. That would be 240 grammes. Obviously the purity would be less and I thank Ms Lo from the Department of Justice for calculating the purity of the cocaine from Charges 1 and 2 to be between 73 and 74 per cent of the total amount.

Therefore, on the defendant’s own admission, he conspired to traffic in about 175 grammes of pure cocaine in Charge 3. According to the Court of Appeal’s guidelines in Lau Tak Ming, where between 50 and 200 grammes is trafficked, the starting point will be between 8 to 12 years’ imprisonment. 175 grammes of cocaine would attract a starting point of 11 years and 4 months’ imprisonment. I find this an appropriate starting point for this case.

After applying a one-third discount, that starting point is reduced to 7 years and 6 months’ imprisonment.

I have taken into account the totality principle. I have taken into account that the conspiracy was not over a long period of time. I have taken into account the fact that without the defendant’s frank and full admission, no one would be any the wiser as to how much cocaine he dealt with. I intend to make the sentence for Charge 3 concurrent to the sentences for Charge 1 and 2.

The last step of Herry Jane Yusuph is to stand back and look at the overall sentence in order to ensure it is fair, just, and balanced in all of the circumstances of not only these offences but also the defendant. 7 years and 6 months’ imprisonment is not so harsh a sentence it is unfair, imbalanced, or unjust.

In conclusion and to repeat myself,

for Charge 1, defendant is sentenced to 4 years 8 months’ imprisonment;

for Charge 2, the defendant is sentenced to 4 years and 8 months’ imprisonment;

for Charge 3, the defendant is sentenced to 7 years and 6 months’ imprisonment.

I would order all three sentences to be served concurrently.

Therefore, the defendant is sentenced to a total of 7 years and 6 months’ imprisonment.