HKSAR v. Lau Chun Sing

[English Translation - 英譯本]
CACC 233/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2010

(ON APPEAL FROM HCCC NO. 57 of 2010)

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BETWEEN

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Before: Hon Cheung and Yeung JJA

Dates of Hearing: 21 December 2010

Date of Judgment: 21 December 2010

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Cheung JA (giving the judgment of the Court):

Facts of the case

1.The applicant pleaded guilty to one count of Trafficking in a Dangerous Drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap 134, before Deputy High Court Judge Patrick Li. The dangerous drug in question was 2.96 kilogrammes of cocaine. Deputy Judge Li sentenced the applicant to 18 years and 8 months’ imprisonment. The applicant applies for leave to appeal against sentence.

2.The facts of the case are that the applicant arrived Hong Kong by air from Johannesburg, South Africa, on 8 August 2009. When entering Hong Kong at the Hong Kong International Airport, he was stopped by Customs Officer who searched his suitcase. The Customs Officer found that the weight and stiffness of the clothing and towels inside the suitcase were unusual. Upon analysis, the said items were confirmed to have been mixed with cocaine. The applicant claimed that he carried the drug to Hong Kong from Lima for a man called ‘Ah Ching’ (transliteration) for a reward of $50,000. The drug was to be handed over to another person later. The retail value of the drug was HK$2,074,960. The applicant was 18 at the time of the offence. He would turn 19 three months thereafter.

The sentencing by Deputy Judge Li in the Court of Appeal(sic)

3.In passing sentence, Deputy Judge Li referred to the sentencing guideline on Trafficking in Dangerous Drugs cases set down in HKSAR v. Abdallah [2009] 2 HKLRD 437 and adopted 25 years as the starting point. He added 3 years to that as the case involved shipping drugs to Hong Kong from overseas. In light of the guilty plea, Deputy Judge Li reduced the sentence by one third (i.e. 9 years and 4 months); the sentence passed in the end was 18 years 8 months’ imprisonment.

Case authority

4.On 12 March 2009, in the case of Abdallah, the Court of Appeal set down sentencing guideline on cases where the amount of heroin or cocaine being trafficked is over 600 grammes. If the quantity of drugs involved is 1,200 to 4,000 grammes, the applicable sentence is 23 to 26 years of imprisonment. Besides, the Court of Appeal said if there was an international dimension to the background of the drug trafficking, and the quantity of drugs in question was one kilogramme or over, the court can enhance the sentence by no less than 2 years of imprisonment.

Opinion of this Court

5.The applicant accepted the starting point of 25 years adopted by Deputy Judge Li. The only contention in this case is the extent to which the sentence was enhanced. This Court is of the view that the 23 to 26 years of imprisonment set down by the Court of Appeal is already a harsh one set with a view to deterring drug traffickers. The Ordinance in fact defines ‘trafficking’ to include the ‘importing’ and ‘exporting’ of drugs. This Court is of the view that the main reason for the need to enhance sentence in cases where there is an international dimension such as ‘importing’ and ‘exporting’ is because it is the most serious amongst the various types of drug trafficking activities. This Court, however, does not think the extent of the enhancement mentioned in the Abdallah case requires scaling up according to the quantity of the drugs; we are of the view that the sentence in the end has to be uniform and appropriate.  This Court considers that reference can be made to HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486, which had been discussed by the court in the case of Abdallah. Three kilogrammes of cocaine was involved in the case. The starting point the court adopted was 27 years. The courts of Hong Kong have since the case of Abdallah adopted a 2-year enhancement in passing sentence in drug trafficking cases where there is an international background.

6.Having regard to the age of the applicant at the time of the offence and the fact that this is the first time he committed the offence of trafficking in a dangerous drug, this Court considers that a 2-year enhancement is already a sufficient punishment. We therefore allow the application, and treating it as the appeal itself, vary the original starting point of 28 years to 27 years. After taking off one third of the sentence (i.e. 9 years) for the guilty plea, in the end, he is sentenced to 18 years of imprisonment.

Ms Irene Fan, Senior Public Prosecutor, of the Department of Justice, for the Respondent.

Mr Kevin Chan, assigned by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.