HKSAR v. Lau Siu Hong, Sammy

HCCC 362/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 362 OF 2014

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug. You admitted that on 6 April 2014, at the Lo Wu Border Control Point, New Territories, Hong Kong, you unlawfully trafficked in 496.46 grammes of a crystalline solid containing 491.54 grammes of methamphetamine hydrochloride, otherwise commonly known as the drug 'Ice'.

At about 8 pm on 6 April, you arrived in Hong Kong from Shenzhen, China, at the Lo Wu Control Point. You were stopped by Customs officers at the “Nothing to declare” channel at the Customs Arrival Hall. You were then taken to a room in order for a search to be conducted upon you. Upon search by a Customs officer, a parcel was found wrapped around your waist by a girdle. The parcel was a plastic Glad snap lock bag which contained the drugs as mentioned in the charge. It was wrapped with layers of carbon paper and plastic wrap.

In April 2014, the 'Ice' found in your possession could have been sold at street level for HK$202,059.

Your counsel, Mr Christopher Grounds, has very persuasively, in his usual eloquence, mitigated on your behalf and I have taken into account what he has had to say. He has quite properly referred me to the tariff case in sentencing for the drug 'Ice', which is in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125. He also understands that because there was an international element involved in that you brought these drugs from China into Hong Kong, an enhancement of the starting point is called for.

The prosecution, Mr Marray, counsel on fiat, referred this court to Hong Kong SAR v Chung Ping Kun, CACC 85/2014, whereby the Court of Appeal then, in a judgment dated 2 July 2014, laid down broad guidelines for the level of enhancement in respect of drugs below 1,000 grammes. Between 250 and 500 grammes, the court suggested the level of enhancement to be between 6 months to 1 year of imprisonment.

Mr Grounds has referred me to the case of Hong Kong SAR v Malibanga Josephine Raymond, CACC 167/2014, where he relies on the very experienced Deputy High Court Judge Stuart-Moore, at first instance, imposing an enhancement of 3 months’ imprisonment to a sentence of 17 years and 3 months for an amount of 0.49 kilogrammes of heroin hydrochloride. Mr Grounds submits that the case of Chung Ping Kun is not necessarily applicable to the present case as that judgment was handed down on 2 July 2014 and in this instant case, the offence was dated 6 April 2014.

Prior to Chung Ping Kun, the courts had an unfettered discretion to impose any level of proper sentence for enhancement for the international element. He asks this court to be as lenient as possible in applying the enhancement, given this offence was committed before July 2014.

As a matter of background, the defendant is now aged 53. He has 10 previous convictions. Three of those related to dangerous drugs, the first being one of possession of dangerous drugs in 1989 for which he was sentenced to probation. The other two offences are similar, that is, those two are of trafficking. In 1995, he was sentenced to 10 years’ imprisonment and in 2006, he was sentenced to 6 years’ imprisonment.

As to the antecedents, the defendant is divorced but has two elder daughters and lives in Hong Kong, with a girlfriend in Mainland China.

Mr Grounds has urged this court not to impose an enhancement on the basis of his previous convictions. He refers me to paragraph 7 of Chung Ping Kun, where the court said this:

“Sentencing is an art. A pure mathematical approach even for trafficking in drugs where tariffs are provided for will ignore other relevant considerations. No doubt the applicant is a persistent offender and enhancement as an additional deterrent is a recognised principle. However, at the same time, the applicant is already 64 years of age. He has been in and out of prison since his mid-30s. With a heavy sentence like the present one, it is no exaggeration to say there is a possibility that he may spend the rest of his life in prison. In our view, the judge had probably taken this into account when she imposed a starting point of 13 years’ imprisonment. We see no reasons to enhance it further.”

Mr Grounds has urged me not to enhance the defendant’s sentence because he has previous similar convictions. He requests that I follow the approach in Chung in that, in this case, the defendant, if he is sentenced to a term of imprisonment, it is likely that he will only be out of prison at the age of 64 or 65 years of age. The sentence will therefore be a long one and no enhancement should be imposed.

I havegiven anxious consideration to Mr Grounds’ submission. I accept that in view of the quantity of drugs, the defendant will be serving a long, long term of imprisonment. However, the distinction here is that, in this case, the defendant is some 10 years younger than that of Chung. It does not seem to be the case that the defendant would spend the rest of his life in prison.

The defendant has two previous similar convictions for trafficking and those terms were of lengthy terms of imprisonment. They were obviously of large amounts of drugs. Of course, the defendant is not being punished again for those offences, but as clearly stated in Hong Kong SAR v Abdallah Anwar Abbas, CACC 204/2008, at paragraph 42, an aggravating factor calling for the enhancement of the starting point is where the trafficker has previously been convicted of trafficking in dangerous drug.

In balancing all factors, I do consider that an enhancement to the starting point is appropriate in this case as he has two previous convictions for trafficking in dangerous drugs.

Defendant, you had trafficked, in this case, in 491.54 grammes of 'Ice'. This falls within the bracket of Ching Kwok Hung of between 300 to 600 grammes of which a starting point of between 14 and 18 years’ imprisonment is appropriate. Taking the quantity of drugs involved, I would have taken a starting point of 16 years and 6 months’ imprisonment had you been convicted after trial.

Taking into account the quantity of the drugs and the international element involved, I enhance that starting point by 1 year’s imprisonment, taking the term to one of 17 years and 6 months’ imprisonment. I further enhance that term for your previous trafficking in dangerous drug convictions by 6 months’ imprisonment.

Therefore, the total sentencing point had you been convicted after trial would have been one of 18 years’ imprisonment.

You have pleaded guilty and you deserve the full one-third discount and the resulting sentence which you shall serve shall be one of 12 years’ imprisonment.