HKSAR v. Lau Kong Fai

HCCC 398 & 399/2013

(Heard Together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 398 AND 399 OF 2013

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: D1 was indicted with one count of trafficking in a dangerous drug. D2 was charged with two charges of trafficking in a dangerous drug. Charge 1 relates to the same incident from which the count against D1 arose. D2 had pleaded guilty to both charges laid against him before a magistrate and was committed to the Court of First Instance for sentence. Today he pleaded guilty to both charges again before me. D1 was committed for trial in this court and before me he pleaded guilty to the offence.

In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendants and mitigation put forward on their behalf.

The facts which both defendants admitted may be summarised as follows. In the evening on 18 March 2013, D2 drove a private car to Tai Wo Service Road West, Tai Po. D1 was

sitting next to him at the front passenger seat. D2 alighted from the car. He lifted a traffic cone which was placed at the roadside and took a red bag placed underneath it, he then returned to the car. When D2 was about to drive off, police officers stopped the car. A plastic bag containing four bags of ketamine was found placed underneath the driver’s seat. The total quantity was 0.96 kilogrammes of a powder containing 0.40 kilogrammes of ketamine. Both D1 and D2 were arrested.

Under caution, D2 stated that he delivered “K Chai” to others for $1,500 as he had no money.

D1 admitted under caution that it was his first time to act as a drug courier. He said he was recruited by a man called Ah Leung and was told to wait at Shek Yam Estate for someone to pick him up. D2, whom he did not know before, came to pick him up. Then they went together to Tai Wo to pick up the ketamine together.

Upon further search of the car, a green bag was found at the boot. Inside it were 10 packets of ketamine. The total quantity was 816.96 grammes of a powder containing 419.57 grammes of ketamine. Under caution, D2 admitted that he picked the packets up the day before and was going to deliver them later that day. He received instructions from a man whom he came to know at an amusement games centre. D2 said he also received instructions from the same man to pick up D1, whom he did not know before, and to collect the dangerous drug hidden underneath the traffic cone.

D1 is now 19 years old. He received education up to form 2 level and had worked as a part time kitchen worker. At the time of arrest, he worked as a casual decoration worker. He lived with his parents in a public housing estate flat. Learned counsel for D1, Ms See, urged me to accept that D1 is now remorseful and determined to turn over a new leaf. She also urged me to note that D1 had still not reached the age of 18 when he committed the offence. She told me D1 committed the offence because of the economic pressure the family faced as his father could not work after having injured himself during work. The family still supports the defendant. Ms See asked for a lenient sentence.

D2 is 24 years of age. He received education up to form 5 and had worked as a driver and a transportation worker for three years. His parents were divorced before he was born. He lived with his uncle and aunt. I was told that D2 also committed the offence under economic pressure. He had planned to get married with his girlfriend. The girlfriend wrote in support of D2, telling the court that D2 was a responsible person and kind in nature. Family members, friends and church also wrote letters pleading for leniency.

Learned counsel for D2, Mr Cheng, urged the court to note that D2 had pleaded guilty at the earliest opportunity and is remorseful.

The dangerous drug which the defendants trafficked in was ketamine. For the charge which both D1 and D2 faced, the narcotic content was 400 grammes. For the charge which D2 faces alone, the narcotic content was 419.57 grammes.

In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal suggested that in a case where the narcotic content is 300 to 600 grammes, a sentence of 9 to 12 years’ imprisonment should be considered. If the narcotic content is 600 to 1,000 grammes, the sentence should be 12 to 14 years. In all the circumstances of the case, I do not see there are grounds to justify departure from the tariff.

For the charge against D1, I adopt a starting point of 10 years. I also adopt the same starting for Charge 1 against D2, as it involved the same offence, the ketamine which he picked underneath the traffic cone.

For Charge 2 against D2, the ketamine found inside the car boot, I also adopt 10 years as a starting point.

Both defendants pleaded guilty and are entitled to a one-third discount for this reason.

Having considered the whole circumstances, including mitigation submissions, I am of the view that this is the extent of discount D2 is entitled to. Economic pressure in the circumstances of the present case cannot be recognised as a mitigating factor. The same applies for D1.

It is sad to see a young man again being exploited to commit this serious offence. D1 was not of extreme youth when he committed offence, but taking into account he was at that time slightly under the age of 18, I am prepared to give him a discount of 5 months.

I therefore sentence D1, the accused in HCCC 398/2013, to 6 years and 3 months’ imprisonment.

I sentence D2, the accused in HCCC 399/2013, to 6 years and 8 months’ imprisonment for each charge he was convicted. Having regard to totality, I order 2 years of the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1.

D2 is to serve a total sentence of 8 years and 8 months for the two charges.