A HCCC 172/2020 A
HCCC 173/2020
(Heard together)
B [2022] HKCFI 182 B
IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
D CRIMINAL CASE NOS 172 AND 173 OF 2020 D
-----------------
E E
HKSAR
F F
v
G Chu Chui-shan (HCCC 172/2020) G
Lau Kin-leung (HCCC 173/2020)
H ----------------- H
I
Before: DHCJ Bruce, SC I
Date: 2 December 2021 at 3.29 pm
Present: Ms Flora Suk-yee Cheng, on fiat, for HKSAR
J Ms Annie Lai, instructed by Robertsons, assigned by J
DLA, for the accused in HCCC 172/2020
Mr David D H Iu, instructed by Cheung & Liu, assigned
K by DLA, for the accused in HCCC 173/2020 K
Offence: (1) & (2) Trafficking in a dangerous drug (販運危險藥物)
L L
---------------------------------
M Transcript of the Audio Recording M
of the Sentence in the above Case
---------------------------------
N N
COURT: On 26 November 2018, police officers were conducting an
O operation in Ting On Street in Kwun Tong. O
At about 6.20 pm, Chu Chui-shan and Lau Kin-leung left Room
P A, Flat B, 1st Floor, Sheung Heu Building, 96 Ting On Street P
(hereafter “the premises”) and boarded a taxi bearing
registration JX5174.
Q Q
Police officers followed the taxi which was driven to Yau
R Tong in the direction of Sau Mau Ping. At about 6.55 pm, R
Sergeant 51369 stopped the taxi. Police officers then
approached the taxi to make enquiries. Mr Lau was sitting
S on the left-hand side of the rear passenger seat holding a S
white paper bag which is Exhibit P1. Ms Chu was sitting on
T
the right-hand side of the rear passenger seat. T
U U
CRT27/2.12.2021/JC 1 HCCC 172 & 173/2020(1)/Sentence
V V
A Mr Lau was asked by the police to leave the taxi for a A
search. The white paper bag (Exhibit P1) was found to
contain:
B B
(1) a white tissue paper wrapping a transparent resealable
plastic bag containing suspected dangerous drugs
C C
(Exhibit P2); and
D (2) a transparent plastic bag with the numbers “25.96” D
containing suspected dangerous drugs (Exhibit P3); and
a transparent resealable plastic bag marked with
E numbers “25.99” which was Exhibit P4. E
Shortly thereafter, a police constable conducted a body
F F
search on Mr Lau and found four keys, some cash, a mobile
phone and a mobile charger. Mr Lau was arrested by that
G officer for trafficking in dangerous drugs. He was G
cautioned. In response to the caution, Mr Lau said “I have
nothing to say.”
H H
Ms Chu was arrested by another police officer and in
I
response to a caution administered to her, said “I know I
nothing at all.” A body search was conducted by an officer
and a small amount of cash, a mobile phone and a SIM card
J were found on her. J
Photographs were taken of the items seized from both of
K them. K
L Mr Lau and Ms Chu were escorted to Sau Mau Ping Police L
Station accompanied by exhibits, in particular Exhibits P2,
3, and 4 which were found inside the white bag were shown to
M the Duty Officer, weighed and sealed. M
At 9.57 pm, Mr Lau and Ms Chu was taken by the police to the
N premises. The purpose of being taken there was to conduct a N
house search pursuant to a search warrant. Keys seized from
O Mr Lau were used to gain access to the premises. O
Inside the premises, a round shaped container (Exhibit P6)
P was found and inside that container a series of exhibits P
were seized in the presence of Ms Chu and Mr Lau. The
exhibits were:
Q Q
(1) a transparent resealable plastic bag containing
R suspected dangerous drugs, that was Exhibit P7; R
(2) a transparent resealable plastic bag with the
S numbers “25.91” containing suspected dangerous S
drugs, that was Exhibit P8;
T T
(3) a transparent resealable bag marked with the
numbers “26.07” containing suspected dangerous
U drugs (Exhibit P9); U
CRT27/2.12.2021/JC 2 HCCC 172 & 173/2020(1)/Sentence
V V
A A
(4) a transparent resealable bag marked with the
numbers “26.01” containing suspected dangerous
B drugs, that is Exhibit P10; B
(5) a transparent resealable plastic bag with the
C C
numbers “25.93” containing suspected dangerous
drugs, that was Exhibit P11;
D D
(6) a transparent resealable plastic bag with the
numbers “25.98” containing suspected dangerous
E drugs (Exhibit P12); E
(7) a transparent resealable plastic bag containing
F F
suspected dangerous drugs (Exhibit P13);
G (8) some transparent plastic resealable bags with a G
redline containing some transparent resealable
bags also of a redline, that was Exhibit 14;
H H
(9) a transparent resealable plastic bag containing
I
some further resealable plastic bags (Exhibit 15); I
and
J (10) finally, (Exhibit 16) a digital scale. J
Photographs were taken by the police of the suspected
K dangerous drugs at the premises. K
L At 12.37 am on 27 November 2018, Mr Lau and Ms Chu were L
taken to Sau Mau Ping Police Station accompanied by the
exhibits seized at the premises. At the police station, the
M exhibits were weighed and sealed in the presence of the Duty M
Officer.
N Exhibits P2 to P4 and P7 to P13 were kept in proper custody N
and conveyed to the government laboratory for examination.
O They were examined by the government chemist. Exhibits O
P2 to P4 were found to contain a total of 71.7 grammes of a
solid containing 30.8 grammes of cocaine. Exhibits P7 to
P P13 were also examined. Exhibits P7 to P12 were found to P
contain 143.6 grammes of a solid containing 60.5 grammes of
cocaine. Exhibit P13 was found to contain 1.75 grammes of a
Q Q
powder containing 0.63 grammes of cocaine. In total,
Exhibits P7 to P13, the total contents so far as cocaine was
R concerned was 61.13 grammes. R
The street value of cocaine at the time of seizure was, if
S sold as powdered cocaine, $1,193, if the cocaine was sold as S
crack cocaine, the street value was $1,641. Accordingly,
the drugs seized were of a substantial value.
T T
U U
CRT27/2.12.2021/JC 3 HCCC 172 & 173/2020(1)/Sentence
V V
A A
Procedural Matters
B Both Mr Lau and Ms Chu were charged and appeared in court. B
Eventually they are both charged with trafficking in
dangerous drugs. Charge 1 alleged trafficking in
C C
71.7 grammes of a solid containing 30.8 grammes of cocaine
which was the charge in the taxi. And in relation to
D Charge 2, an allegation of 143.6 grammes of a solid D
containing 60.5 grammes of cocaine and 1.75 grammes of a
powder containing 0.63 grammes of cocaine. In Charge 2, the
E total weight of cocaine was 61.13 grammes. Ultimately, on 3 E
August 2020, in committal proceedings, Mr Lau and Ms Chu
appeared before Mr Cheang Kei-hong siting as a permanent
F F
magistrate in the Eastern Magistrates’ Court. Mr Lau
pleaded guilty to both charges and admitted the Summary of
G Facts which appears in the papers. The learned magistrate G
committed him to this court for sentence. I am also
informed today and I accept that his assistance to the
H police occurred before he was committed, indeed, well H
before.
I I
Ms Chu did not plead guilty. She was committed to this
court for trial. An indictment was filed on 17 August 2020.
J The matter was set down for trial. The indictment called J
upon her to answer on 23 November 2021. On that date,
Ms Chu did not appear and a warrant for her arrest was
K issued. She was apprehended shortly after that and was K
brought to this court on 25 November 2021. The court
L ordered that she be remanded in custody. Prior to that, she L
was on bail.
M Arrangements were made through the court’s staff for her to M
contact the Director of Legal Aid to arrange legal
representation. That would become necessary because when
N the matter was called on for hearing on 23 November 2021, N
counsel and solicitors then representing her sought their
O discharge. That application was granted. The matter was O
listed for 26 November 2021, at which time as a result of
the considerable industry of the Director of Legal Aid, the
P original counsel and solicitors who had earlier been P
discharged had been retained. At that stage, counsel
informed me that preparations for the trial were underway
Q Q
and an adjournment to 29 November 2021 was ordered. On that
date, the court was informed that there were discussions
R underway. The clear implication of what was said that a R
change of plea on the part of Ms Chu was contemplated. That
materialised on 30 November 2021.
S S
On that date, the 2nd count on the indictment was put to
Ms Chu. She pleaded guilty to that charge. The Summary of
T T
Facts which was reflected in the outline earlier recited was
put to her and she admitted that summary. She was,
U accordingly, convicted of Count 2. So far as Count 1 is U
CRT27/2.12.2021/JC 4 HCCC 172 & 173/2020(1)/Sentence
V V
A concerned, by agreement between the parties, the order of A
the court was that this charge lie on the court file, not to
be proceeded with without the permission of the judge of the
B Court of First Instance. B
Antecedents and Mitigation
C C
Ms Chu
D D
Ms Chu was born on 27 June 1990. She is now 31 years of
age. Prior to her arrest, she lived with her mother and
E younger brother in Sha Tin. Her mother is 49 years old and E
her father 56. Her younger brother is aged 27. The parents
and her brother are all in employment. Nevertheless, she
F F
came from a broken family. In 2004, her parents divorced.
At that time, she was 14 years of age. She lived with her
G father following the breakup of the marriage and her brother G
lived with her mother. In summary, it was not a very
harmonious or happy time.
H H
Ms Chu has education only up to Form 2 level. It appears
I
she has some learning difficulties which may explain that I
issue. She spent some time in a school for students with
special needs. Between 2008 and 2017, she worked as a
J salesperson in a beauty shop and in 2018, she worked as a J
saleslady. At that stage, her monthly income was about
$15,000.
K K
In 2018, she returned to live with her mother and younger
L brother. She was also married but her husband and her L
separated after the husband returned to the mainland.
M She formed a relationship with Mr Lau and they commenced the M
relationship of boyfriend and girlfriend. She claims that
she was under the influence of Mr Lau throughout and indeed
N he became involved in unlawful activities. She relied on N
him financially and she received no direct monetary benefit
O from his criminal conduct. She had no other income when she O
was with Mr Lau.
P Ms Chu has a criminal record. In 2009, she was convicted of P
theft and sentenced to 2 months’ imprisonment. The sentence
is one which under the Rehabilitation of Offenders Ordinance
Q Q
is regarded as spent and is treated accordingly. In 2017,
she was convicted of burglary before the District Court.
R She was sentenced to an overall term of imprisonment of 23 R
months.
S Mr Lau S
Mr Lau is a 28-year-old man and was born in Hong Kong. He
T T
is a holder of a permanent ID card. At the time of his
arrest, he was employed as a dock worker. He also has an
U education standard of Secondary 2. He is single although I U
CRT27/2.12.2021/JC 5 HCCC 172 & 173/2020(1)/Sentence
V V
A accept that he and Ms Chu had a close relationship. He has A
a poor criminal record and that is exclusively connected
with dangerous drugs. The number of charges of possession
B of dangerous drugs is indicative of the observation in the B
antecedents report that he is a drug addict. There are a
substantial number of charges of possession of dangerous
C C
drugs. There is also a conviction in 2003 for trafficking
in dangerous drugs. In respect of that, the accused was
D sentenced to 5 years and 4 months’ imprisonment. D
He committed this offence, so his counsel tells me, for
E economic reasons. He expected a substantial amount of money E
which was to go to family support. I draw the inference
that he is a filial son to his parents.
F F
Sentencing Principles
G G
Starting point - Trafficking
H The community of Hong Kong, and as a result, the courts of H
Hong Kong, have for many, many years taken a severe view of
I
drug trafficking, particularly in relation to cocaine. I
These particular drugs have terrible consequences for the
individual. Ridding oneself of an addiction to cocaine is,
J to say the least, an arduous process and sadly, history J
demonstrates that attempts are often fraught with instances
of disappointment.
K K
However, there are serious consequences for the community as
L well. One of those consequences involves the deployment of L
medical and health facilities to help people who become
addicted to these drugs. The view of the community and the
M courts is reflected in the nature of the sentences and the M
levels traditionally imposed for drug trafficking.
N To reflect the serious view that the courts and community N
take in relation to trafficking in dangerous drugs, the
O courts have provided sentencing guidelines for various forms O
of dangerous drugs, including cocaine, which is, of course,
the subject of the charge in this case. The maximum penalty
P under the law is a fine of $5 million or life imprisonment. P
The source of guidelines in relation to the trafficking of
Q Q
cocaine starts with the decision of the Court of Appeal in
R v Lau Tak Ming and Others [1990] 2 HKLR 370. In the
R Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen R
Liu Sa [1994] 3 HKC 685. The Court of Appeal declared the
guidelines in R v Lau Tak Ming and Others (above) are
S appropriate for cocaine. The correctness of the guidelines S
in relation to cocaine was confirmed by the decision of the
Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 43.
T T
The guidelines set by our courts for trafficking in
U 30.8 grammes of cocaine places the accused in the sentencing U
CRT27/2.12.2021/JC 6 HCCC 172 & 173/2020(1)/Sentence
V V
A range appropriate for 10 grammes to 50 grammes which would A
attract a sentence of between 5 and 8 years. The guidelines
set for trafficking in 61.13 grammes of cocaine place the
B defendant in the sentencing bracket for quantities between B
50 grammes and 200 grammes and the relevant sentencing range
is 8 to 12 years’ imprisonment. That is the sentence which
C C
would be imposed following a conviction after trial.
D Discount for Plea of Guilty D
The well-accepted sentencing principles recognise that where
E an accused person pleads guilty at the earliest practicable E
moment, a discount from the appropriate starting point of
33 per cent would be applicable.
F F
Circumstances Applicable to Ms Chu
G G
The position is different in relation to the discount which
might be accorded to a person who pleads guilty at a later
H stage. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 , the Court H
of Appeal conducted a principle review of the nature of the
I
discount from the sentence appropriate for a person who is I
convicted after trial to be accorded to a person who pleads
guilty. As noted already, the Court of Appeal held that
J where a person pleads guilty at the earliest practicable J
moment, a discount of 33 per cent would ordinarily be
accorded to such person. The court also considered two
K other scenarios. One scenario was where the accused had K
been committed for trial to this court but then pleaded
L guilty before the matter was listed for trial. The court L
suggested in that circumstance, a discount of 25 per cent
from the appropriate sentence for a conviction after trial
M would be appropriate. The second scenario mentioned in Ngo M
Van Nam (above) was a plea of guilty on the first day of
trial. The suggested discount for such a situation was 20
N per cent. N
O The Court of Appeal also indicated a sentencing judge has an O
overriding discretion in determining whether to accord some
form of discount and, what that discount might be. The
P present set of circumstances does not align with these P
scenarios contemplated by the Court of Appeal. The
determination of what the appropriate discount is in the
Q Q
present situation must be derived by the use of analogy to
the circumstances contemplated by the Court of Appeal and
R the consideration of the underlying purpose for the R
discount. So far as the underlying purpose of the discount
is concerned, the principal focus of the Court of Appeal was
S that such a discount reflected the pragmatic concern to S
encourage an early plea to reduce pressure on court time and
resources. The court held that the issue of remorse was
T T
largely subsumed in the suggested discounts.
U U
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V V
A Circumstances Appropriate to Mr Lau A
The position in relation to Mr Lau is that beyond the 33 per
B cent ordinarily accorded to a person who pleads guilty at B
the earliest practicable moment is his assistance to the
prosecution.
C C
It has always been the position at common law that an
D offender convicted of crime will receive credit against his D
sentence for any assistance which has been rendered to law
enforcement agencies and the authorities for that are Z v
E HKSAR [2007] 10 HKCFAR 183, 1 HKLRD 977, 2 HKC265, R v AXN E
[2016] EWCA Crim 590, [2016] 1WLR 4006, [2016] 2 Cr App R(S)
33 and the principles were articulated in Z v HKSAR where Li
F F
CJ held:
G “It is the policy of the courts to take into account in G
mitigation of sentence useful assistance the defendant
has given to the authorities and usually to give an
H appropriate reduction from the sentence which the H
defendant would otherwise have received. The
I
assistance is most often given by the defendant after I
his arrest for the offence for which he is being
sentenced (“post-arrest assistance”). There may be
J occasions where the assistance is given by the J
defendant before his arrest.”
K And then Li CJ gives the rationale for the policy is: K
L “The policy of the courts to recognise useful L
assistance to the authorities in mitigation of sentence
is based on the public interest. It is in the public
M interest that appropriate punishment should be imposed M
on defendants convicted of criminal offences. But at
the same time, the prevention, detection and
N prosecution of crime is also in the public interest. N
The use of the informer is a powerful weapon in the
O hands of the law enforcement agencies in society's O
fight against crime. Criminals should be encouraged to
inform on other criminals. Honour among thieves should
P be discouraged. Indeed, dishonour and betrayal among P
thieves should be encouraged.
Q Q
The courts have therefore adopted the policy of
accepting useful assistance to the authorities as a
R mitigating factor. A discount to the sentence which R
would otherwise have been imposed is usually given for
such assistance. This is a common approach in many
S jurisdictions. Its object is to provide an incentive S
for offenders to co-operate with the authorities. It
encourages them to assist by giving information about
T T
the criminal activities of others, by giving evidence
in prosecutions brought and the like. It must be
U recognised that the offender would be receiving a U
CRT27/2.12.2021/JC 8 HCCC 172 & 173/2020(1)/Sentence
V V
A punishment which is less than that which his crime A
would otherwise have deserved. But this is considered
justified in the overall public interest. The courts'
B approach in this regard is a pragmatic one.” B
Li CJ held that in order to obtain a recognition by way of
C C
reduction of sentence, the assistance should be “useful
assistance”. In this regard, Li CJ suggested that the
D courts look into a number of factors including: D
“The nature and extent of the assistance. In relation
E to this, matters which are relevant include: the E
degree to which the defendant gave full and frank
disclosure; the truth and reliability of the
F F
information; the range and seriousness of the criminal
activities disclosed; the significance and usefulness
G of the information and the extent to which it could G
potentially assist or had actually assisted the
authorities; and whether the authorities were already
H in possession of the information and whether the H
defendant believed this to be the case; the extent of
I
the defendant’s assistance, in particular, whether he I
was prepared to give evidence.”
J Li CJ also suggested a range of possible discounts and he J
held:
K “...where an appellant had not only given information K
but had proceeded to give truthful and material
L evidence, the Court of Appeal has given a usual L
discount of 50 per cent (including the one-third
reduction for pleading guilty).”
M M
To provide some context, there are also very rare
circumstances where a person is characterised as a “super-
N grass” who might receive as much as two-thirds off his N
sentence. In HKSAR v Cheung Chi Yuen [2018] 2 HKLRD 1396,
O the Court of Appeal set out the considerations for that O
“25. From the comments in these cases and other
P judgments where the characteristics of a supergrass P
have been discussed, it can be said that in order to
qualify as a supergrass:
Q Q
(1) the assistance provided by a defendant must relate
R to crimes of great gravity; R
(2) the nature of the defendant’s assistance must be
S significant. It must be significant in the sense S
that it can be said of the assistance, where the
defendant does not testify, that it is a key
T T
reason why other offenders are brought to justice;
or, where the defendant does testify, that his
U evidence was a crucial part of the prosecution U
CRT27/2.12.2021/JC 9 HCCC 172 & 173/2020(1)/Sentence
V V
A case. Often it will be able to be said that A
without the defendant’s assistance the particular
crime would have gone undetected; the particular
B offenders would have gone unidentified or that the B
particular criminal activity would have gone un-
prosecuted;
C C
(3) the assistance itself must also be substantial.
D For example, the assistance may be on-going over a D
period of time and may involve multiple acts of
assistance such as the giving of statements, the
E participation in identification parades and the E
testifying in multiple trials including re-trials;
F F
(4) the assistance will often expose the defendant, or
his family or others close to him, to the risk of
G harm. Although this is commonly encountered as a G
feature of the supergrass it is not a
prerequisite. Where it is encountered, then
H clearly the greater the risk of harm, and the more H
serious the harm to which the defendant and/or
I
those close to him are exposed, the more likely it I
is that the defendant will fall into the
supergrass category.
J J
26. When determining whether a defendant falls into
the supergrass category the sentencing court must
K consider the evidence in the round, having regard to K
all the matters we have set out above, but remembering
L that to qualify for a two-thirds discount there must be L
present features that distinguish the defendant from
the normal cooperating accomplice who testifies against
M his co-accuseds. The true supergrass is an exceptional M
category of cooperating defendant who has been
described as being “extremely rarely encountered.”
N N
Against that, it is recognised that assistance such as
O controlled deliveries, even where they fail, is deserving of O
recognition by way of discount above and beyond the ordinary
33 per cent. Generally speaking, the maximum in that
P context is about 40 per cent. P
In this case, Mr Lau was prepared to testify against Ms Chu
Q Q
and, indeed, was scheduled to do so as the first prosecution
witness at her trial. Her plea of guilty obviated the
R necessity for his testimony. I am informed by the R
prosecution that they regarded his assistance as substantial
and that his witness statement is true.
S S
Role of the Accused
T T
It is critical to determine the role of the accused in the
crime, for that you can see HKSAR v Herry Jane Yusuph [2021]
U 1 HKLRD 290, [2020] HKCA 974. In that case, the Court of U
CRT27/2.12.2021/JC 10 HCCC 172 & 173/2020(1)/Sentence
V V
A Appeal recognised that although the analytical starting A
point for the sentencing guidelines for drugs such as
cocaine start on the premise of the sentencing for a courier
B or a storekeeper, the court indicated there could be a range B
of culpability even if the trafficker is characterised as a
keeper or courier. The Court of Appeal held that an
C C
accurate characterisation of the role of the accused is
critical because, in appropriate cases, it would be open to
D the sentencing court to sentence the accused above or below D
the mathematical application of the relevant guideline. The
Court of Appeal rejected the sentencing approach in
E trafficking in dangerous drugs where the sentence was based E
solely on narcotic content.
F F
The Court of Appeal identified six analytic steps:
G (1) identify the seriousness of the offence by G
reference to the relevant sentencing band
applicable;
H H
(2) assess the culpability of the accused by reference
I
to the evidence and circumstances. In this I
regard, the court recognised a wide range of
culpability where the courier or storekeeper rank
J at the lowest level of this hierarchy; J
(3) consider whether it is necessary to go above or
K below the arithmetic calculation within the K
guidelines applicable to the narcotic amount the
L subject of the charge. In this regard, if, for L
good reason, the sentencer may consider it is
appropriate to fix a starting point above or below
M the arithmetic calculation or, indeed, outside the M
relevant sentencing guideline;
N (4) the relevant factors including the fixing of the N
starting point may also take into account
O aggravating factors; O
(5) determine whether the usually applicable discount
P for a plea of guilty should be modified; P
(6) look at the sentence overall to see whether it met
Q Q
the justice of the case, taking account of the
overall criminality of the accused.
R R
Application of Sentencing Principles
S Position of Ms Chu S
The mathematical calculation within the relevant sentencing
T T
band for trafficking in 61.13 grammes of cocaine produces a
sentence of 8 years and 3 months. There is little real
U evidence to determine the culpability of the accused for the U
CRT27/2.12.2021/JC 11 HCCC 172 & 173/2020(1)/Sentence
V V
A trafficking in that 61.13 grammes of cocaine. There is A
material in the premises which is highly suggestive of those
premises being used to pack cocaine. In this regard, I
B refer to the multiple resealable bags and the electronic B
scale. Whether it was doing the packing or was preparing to
do the packing is not clear on the evidence. It could have
C C
been Ms Chu. Against that proposition, it was Mr Lau who
had the keys to the premises. The Summary of Facts provides
D no specific assistance on the topic. In paragraph 17 of the D
Summary of Facts accepted by Ms Chu, it says that Ms Chu
“now accepts and admits that on 26 November 2018 together
E with Mr Lau, she unlawfully trafficked in a dangerous drug”. E
That is of no specific assistance as to the role of Ms Chu.
F F
I am prepared to accept the assertion and mitigation that Mr
Lau was the dominant person in the relationship. I think it
G is highly likely that she was blinded in her judgment by G
that fact and by love. She was, nevertheless, trafficking
in a dangerous drug. I propose to adopt a slightly lower
H starting point to recognise this dominance and the H
relationship between Ms Chu and Mr Lau. I propose to reduce
I
on that account the starting point to 7 years and 6 months. I
I accept that the accused is truly remorseful now. In her
J mitigation letter, she expresses her regret and then says J
“that is why I took the initiative and admitted my
wrongdoing and to shoulder the responsibility”. Well, she
K has taken a very long time to come to that position. K
Indeed, she has been on bail since 28 November 2018.
L L
There was, following the filing of the indictment, a
management hearing of the case on 30 July 2021 and there was
M nothing which suggested that Ms Chu was considering taking M
responsibility for her conduct. I was informed by her
counsel that since about October, she has not been attending
N discussions for preparation of the case. There is also a N
suggestion that she was not reporting for bail. A condition
O of her bail was daily reporting to a police station. There O
is no specific evidence on when she stopped reporting to the
police. As I have already indicated, she did not attend on
P the date appointed for her arraignment. She was apprehended P
once the court issued a warrant for her arrest.
Accordingly, the assertion by Ms Chu of taking initiative
Q Q
and shouldering responsibility has to be taken with
something of a large grain of salt. A highly respectable
R view of the matter is that if this was her position, the R
time for taking the initiative and shouldering the
responsibility was at the time of committal. However,
S another view is that this woman who for quite some time was S
for some reason also almost certainly because of fear, her
facing up to responsibilities. It is not easy to resolve
T T
those two positions and, many instances they are
irreconcilable. I incline towards the latter view.
U U
CRT27/2.12.2021/JC 12 HCCC 172 & 173/2020(1)/Sentence
V V
A Clearly, Ms Chu did not shoulder her responsibility on the A
first day of trial. I strongly suspect that her
non-attendance on that date was simply an inability to come
B to terms with her situation and face up to reality. That is B
something which is seen in some people. The reaction is
regrettable and has actually caused court time to be lost.
C C
That court time is part of the public resources but, the
reality is that it was caused in her case by an all too
D human failing. Accordingly, in the context of what discount D
to accord to the accused for her belated plea of guilty, I
do not think it is appropriate to hold her human failing
E against her. E
That leaves the question of what discount is appropriate. I
F F
think it is likely I will be accused of being over-generous
but I propose to discount the appropriate starting point by
G 22 per cent. G
Position of Mr Lau
H H
Mr Lau pleaded guilty at the earliest practicable moment to
I
both charges on the charge sheet. On the mathematical I
calculation of the guidelines for the quantity of
30.8 grammes of cocaine, so far as the 1st charge is
J concerned, that results in a starting point of 6 years and J
7 months. In relation to the application of the
mathematical guidelines for 61.13 grammes of cocaine, the
K starting point as indicated above, in relation to the K
position of Ms Chu, is 8 years and 3 months. The possession
L of the drugs and the trafficking in them were very close in L
time although in different locations. I think that an
overall sentence crafted to reflect the total amount of
M narcotic would be a just approach. That would involve 91.93 M
grammes of cocaine. On a mathematical application of the
guidelines, that would put the total in 8 years to 12 years
N sentencing bracket, resulting in a sentence of 9 years and 1 N
month. Although it will be necessary to sentence Mr Lau on
O separate counts, the underlying premise of the ultimate O
sentence is to achieve a totality in sentence which would
reflect that amount of cocaine.
P P
As to the role of the accused, I am sure he was the
organiser of this trafficking venture. I see no basis on
Q Q
which he should be sentenced with other than an application
of the mathematical outcome of the quantity of cocaine in
R respect of the guidelines. His drug history is strongly R
supportive of that proposition.
S The real issue for Mr Lau is his assistance to the S
authorities. He has provided witness statement and has
indicated a willingness to testify. I am informed and I
T T
accept he would have testified but for the fact that Ms Chu
pleaded guilty when she did. While, as I have said, I am
U perfectly prepared to accept the remorse, I am in no doubt U
CRT27/2.12.2021/JC 13 HCCC 172 & 173/2020(1)/Sentence
V V
A that the fact that Mr Lau was prepared to testify against A
her was relevant to her decision-making. In my opinion, his
testimony was likely to be accepted by the jury as true.
B The question remains what discount to accord to the accused. B
In my opinion, his assistance and preparedness to testify
places him well above the 40 per cent bracket. I am minded
C C
to accord to him a discount of 50 per cent because of his
assistance.
D D
On the premise of assistance 50 per cent in relation to
Charge 1, the appropriate discounted sentence would be 3
E years and 3 months. On the same premise, in relation to E
Charge 2, the discounted sentence would be 4 years and 1
month. If the whole of the cocaine have been brought as one
F F
charge, the discounted sentence would have been 4 years and
6 months.
G G
Resolution
H In relation to Ms Chu, for the reasons I have outlined, the H
sentence I impose on Count 2 is 6 years and 2 months.
I I
In relation to Mr Lau, after discount on Count 1, it is 3
years and 3 months. The sentence on Count 2 is 4 years and
J 1 month. In order to achieve totality, which would be J
appropriate on the basis of the cocaine in both charges is
combined, I order that 5 months of the sentence in Count 1
K be served consecutively to the sentence on Count 2 and the K
balance to be served concurrently.
L L
(Discussion re bail and sentence)
M Ms Chu, first of all, I apologise to you. I made a mistake M
and I am now going to correct that. The starting point for
you should have been 7 years and 6 months from which a
N reduction of 22 per cent should be taken and the ultimate N
result is 5 years and 10 months on Count 2 and that is the
O sentence of you of the court. O
P P
Q Q
R R
S S
T T
U U
CRT27/2.12.2021/JC 14 HCCC 172 & 173/2020(1)/Sentence
V V
A HCCC 172/2020 A
HCCC 173/2020
(Heard together)
B [2022] HKCFI 182 B
IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
D CRIMINAL CASE NOS 172 AND 173 OF 2020 D
-----------------
E E
HKSAR
F F
v
G Chu Chui-shan (HCCC 172/2020) G
Lau Kin-leung (HCCC 173/2020)
H ----------------- H
I
Before: DHCJ Bruce, SC I
Date: 2 December 2021 at 3.29 pm
Present: Ms Flora Suk-yee Cheng, on fiat, for HKSAR
J Ms Annie Lai, instructed by Robertsons, assigned by J
DLA, for the accused in HCCC 172/2020
Mr David D H Iu, instructed by Cheung & Liu, assigned
K by DLA, for the accused in HCCC 173/2020 K
Offence: (1) & (2) Trafficking in a dangerous drug (販運危險藥物)
L L
---------------------------------
M Transcript of the Audio Recording M
of the Sentence in the above Case
---------------------------------
N N
COURT: On 26 November 2018, police officers were conducting an
O operation in Ting On Street in Kwun Tong. O
At about 6.20 pm, Chu Chui-shan and Lau Kin-leung left Room
P A, Flat B, 1st Floor, Sheung Heu Building, 96 Ting On Street P
(hereafter “the premises”) and boarded a taxi bearing
registration JX5174.
Q Q
Police officers followed the taxi which was driven to Yau
R Tong in the direction of Sau Mau Ping. At about 6.55 pm, R
Sergeant 51369 stopped the taxi. Police officers then
approached the taxi to make enquiries. Mr Lau was sitting
S on the left-hand side of the rear passenger seat holding a S
white paper bag which is Exhibit P1. Ms Chu was sitting on
T
the right-hand side of the rear passenger seat. T
U U
CRT27/2.12.2021/JC 1 HCCC 172 & 173/2020(1)/Sentence
V V
A Mr Lau was asked by the police to leave the taxi for a A
search. The white paper bag (Exhibit P1) was found to
contain:
B B
(1) a white tissue paper wrapping a transparent resealable
plastic bag containing suspected dangerous drugs
C C
(Exhibit P2); and
D (2) a transparent plastic bag with the numbers “25.96” D
containing suspected dangerous drugs (Exhibit P3); and
a transparent resealable plastic bag marked with
E numbers “25.99” which was Exhibit P4. E
Shortly thereafter, a police constable conducted a body
F F
search on Mr Lau and found four keys, some cash, a mobile
phone and a mobile charger. Mr Lau was arrested by that
G officer for trafficking in dangerous drugs. He was G
cautioned. In response to the caution, Mr Lau said “I have
nothing to say.”
H H
Ms Chu was arrested by another police officer and in
I
response to a caution administered to her, said “I know I
nothing at all.” A body search was conducted by an officer
and a small amount of cash, a mobile phone and a SIM card
J were found on her. J
Photographs were taken of the items seized from both of
K them. K
L Mr Lau and Ms Chu were escorted to Sau Mau Ping Police L
Station accompanied by exhibits, in particular Exhibits P2,
3, and 4 which were found inside the white bag were shown to
M the Duty Officer, weighed and sealed. M
At 9.57 pm, Mr Lau and Ms Chu was taken by the police to the
N premises. The purpose of being taken there was to conduct a N
house search pursuant to a search warrant. Keys seized from
O Mr Lau were used to gain access to the premises. O
Inside the premises, a round shaped container (Exhibit P6)
P was found and inside that container a series of exhibits P
were seized in the presence of Ms Chu and Mr Lau. The
exhibits were:
Q Q
(1) a transparent resealable plastic bag containing
R suspected dangerous drugs, that was Exhibit P7; R
(2) a transparent resealable plastic bag with the
S numbers “25.91” containing suspected dangerous S
drugs, that was Exhibit P8;
T T
(3) a transparent resealable bag marked with the
numbers “26.07” containing suspected dangerous
U drugs (Exhibit P9); U
CRT27/2.12.2021/JC 2 HCCC 172 & 173/2020(1)/Sentence
V V
A A
(4) a transparent resealable bag marked with the
numbers “26.01” containing suspected dangerous
B drugs, that is Exhibit P10; B
(5) a transparent resealable plastic bag with the
C C
numbers “25.93” containing suspected dangerous
drugs, that was Exhibit P11;
D D
(6) a transparent resealable plastic bag with the
numbers “25.98” containing suspected dangerous
E drugs (Exhibit P12); E
(7) a transparent resealable plastic bag containing
F F
suspected dangerous drugs (Exhibit P13);
G (8) some transparent plastic resealable bags with a G
redline containing some transparent resealable
bags also of a redline, that was Exhibit 14;
H H
(9) a transparent resealable plastic bag containing
I
some further resealable plastic bags (Exhibit 15); I
and
J (10) finally, (Exhibit 16) a digital scale. J
Photographs were taken by the police of the suspected
K dangerous drugs at the premises. K
L At 12.37 am on 27 November 2018, Mr Lau and Ms Chu were L
taken to Sau Mau Ping Police Station accompanied by the
exhibits seized at the premises. At the police station, the
M exhibits were weighed and sealed in the presence of the Duty M
Officer.
N Exhibits P2 to P4 and P7 to P13 were kept in proper custody N
and conveyed to the government laboratory for examination.
O They were examined by the government chemist. Exhibits O
P2 to P4 were found to contain a total of 71.7 grammes of a
solid containing 30.8 grammes of cocaine. Exhibits P7 to
P P13 were also examined. Exhibits P7 to P12 were found to P
contain 143.6 grammes of a solid containing 60.5 grammes of
cocaine. Exhibit P13 was found to contain 1.75 grammes of a
Q Q
powder containing 0.63 grammes of cocaine. In total,
Exhibits P7 to P13, the total contents so far as cocaine was
R concerned was 61.13 grammes. R
The street value of cocaine at the time of seizure was, if
S sold as powdered cocaine, $1,193, if the cocaine was sold as S
crack cocaine, the street value was $1,641. Accordingly,
the drugs seized were of a substantial value.
T T
U U
CRT27/2.12.2021/JC 3 HCCC 172 & 173/2020(1)/Sentence
V V
A A
Procedural Matters
B Both Mr Lau and Ms Chu were charged and appeared in court. B
Eventually they are both charged with trafficking in
dangerous drugs. Charge 1 alleged trafficking in
C C
71.7 grammes of a solid containing 30.8 grammes of cocaine
which was the charge in the taxi. And in relation to
D Charge 2, an allegation of 143.6 grammes of a solid D
containing 60.5 grammes of cocaine and 1.75 grammes of a
powder containing 0.63 grammes of cocaine. In Charge 2, the
E total weight of cocaine was 61.13 grammes. Ultimately, on 3 E
August 2020, in committal proceedings, Mr Lau and Ms Chu
appeared before Mr Cheang Kei-hong siting as a permanent
F F
magistrate in the Eastern Magistrates’ Court. Mr Lau
pleaded guilty to both charges and admitted the Summary of
G Facts which appears in the papers. The learned magistrate G
committed him to this court for sentence. I am also
informed today and I accept that his assistance to the
H police occurred before he was committed, indeed, well H
before.
I I
Ms Chu did not plead guilty. She was committed to this
court for trial. An indictment was filed on 17 August 2020.
J The matter was set down for trial. The indictment called J
upon her to answer on 23 November 2021. On that date,
Ms Chu did not appear and a warrant for her arrest was
K issued. She was apprehended shortly after that and was K
brought to this court on 25 November 2021. The court
L ordered that she be remanded in custody. Prior to that, she L
was on bail.
M Arrangements were made through the court’s staff for her to M
contact the Director of Legal Aid to arrange legal
representation. That would become necessary because when
N the matter was called on for hearing on 23 November 2021, N
counsel and solicitors then representing her sought their
O discharge. That application was granted. The matter was O
listed for 26 November 2021, at which time as a result of
the considerable industry of the Director of Legal Aid, the
P original counsel and solicitors who had earlier been P
discharged had been retained. At that stage, counsel
informed me that preparations for the trial were underway
Q Q
and an adjournment to 29 November 2021 was ordered. On that
date, the court was informed that there were discussions
R underway. The clear implication of what was said that a R
change of plea on the part of Ms Chu was contemplated. That
materialised on 30 November 2021.
S S
On that date, the 2nd count on the indictment was put to
Ms Chu. She pleaded guilty to that charge. The Summary of
T T
Facts which was reflected in the outline earlier recited was
put to her and she admitted that summary. She was,
U accordingly, convicted of Count 2. So far as Count 1 is U
CRT27/2.12.2021/JC 4 HCCC 172 & 173/2020(1)/Sentence
V V
A concerned, by agreement between the parties, the order of A
the court was that this charge lie on the court file, not to
be proceeded with without the permission of the judge of the
B Court of First Instance. B
Antecedents and Mitigation
C C
Ms Chu
D D
Ms Chu was born on 27 June 1990. She is now 31 years of
age. Prior to her arrest, she lived with her mother and
E younger brother in Sha Tin. Her mother is 49 years old and E
her father 56. Her younger brother is aged 27. The parents
and her brother are all in employment. Nevertheless, she
F F
came from a broken family. In 2004, her parents divorced.
At that time, she was 14 years of age. She lived with her
G father following the breakup of the marriage and her brother G
lived with her mother. In summary, it was not a very
harmonious or happy time.
H H
Ms Chu has education only up to Form 2 level. It appears
I
she has some learning difficulties which may explain that I
issue. She spent some time in a school for students with
special needs. Between 2008 and 2017, she worked as a
J salesperson in a beauty shop and in 2018, she worked as a J
saleslady. At that stage, her monthly income was about
$15,000.
K K
In 2018, she returned to live with her mother and younger
L brother. She was also married but her husband and her L
separated after the husband returned to the mainland.
M She formed a relationship with Mr Lau and they commenced the M
relationship of boyfriend and girlfriend. She claims that
she was under the influence of Mr Lau throughout and indeed
N he became involved in unlawful activities. She relied on N
him financially and she received no direct monetary benefit
O from his criminal conduct. She had no other income when she O
was with Mr Lau.
P Ms Chu has a criminal record. In 2009, she was convicted of P
theft and sentenced to 2 months’ imprisonment. The sentence
is one which under the Rehabilitation of Offenders Ordinance
Q Q
is regarded as spent and is treated accordingly. In 2017,
she was convicted of burglary before the District Court.
R She was sentenced to an overall term of imprisonment of 23 R
months.
S Mr Lau S
Mr Lau is a 28-year-old man and was born in Hong Kong. He
T T
is a holder of a permanent ID card. At the time of his
arrest, he was employed as a dock worker. He also has an
U education standard of Secondary 2. He is single although I U
CRT27/2.12.2021/JC 5 HCCC 172 & 173/2020(1)/Sentence
V V
A accept that he and Ms Chu had a close relationship. He has A
a poor criminal record and that is exclusively connected
with dangerous drugs. The number of charges of possession
B of dangerous drugs is indicative of the observation in the B
antecedents report that he is a drug addict. There are a
substantial number of charges of possession of dangerous
C C
drugs. There is also a conviction in 2003 for trafficking
in dangerous drugs. In respect of that, the accused was
D sentenced to 5 years and 4 months’ imprisonment. D
He committed this offence, so his counsel tells me, for
E economic reasons. He expected a substantial amount of money E
which was to go to family support. I draw the inference
that he is a filial son to his parents.
F F
Sentencing Principles
G G
Starting point - Trafficking
H The community of Hong Kong, and as a result, the courts of H
Hong Kong, have for many, many years taken a severe view of
I
drug trafficking, particularly in relation to cocaine. I
These particular drugs have terrible consequences for the
individual. Ridding oneself of an addiction to cocaine is,
J to say the least, an arduous process and sadly, history J
demonstrates that attempts are often fraught with instances
of disappointment.
K K
However, there are serious consequences for the community as
L well. One of those consequences involves the deployment of L
medical and health facilities to help people who become
addicted to these drugs. The view of the community and the
M courts is reflected in the nature of the sentences and the M
levels traditionally imposed for drug trafficking.
N To reflect the serious view that the courts and community N
take in relation to trafficking in dangerous drugs, the
O courts have provided sentencing guidelines for various forms O
of dangerous drugs, including cocaine, which is, of course,
the subject of the charge in this case. The maximum penalty
P under the law is a fine of $5 million or life imprisonment. P
The source of guidelines in relation to the trafficking of
Q Q
cocaine starts with the decision of the Court of Appeal in
R v Lau Tak Ming and Others [1990] 2 HKLR 370. In the
R Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen R
Liu Sa [1994] 3 HKC 685. The Court of Appeal declared the
guidelines in R v Lau Tak Ming and Others (above) are
S appropriate for cocaine. The correctness of the guidelines S
in relation to cocaine was confirmed by the decision of the
Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 43.
T T
The guidelines set by our courts for trafficking in
U 30.8 grammes of cocaine places the accused in the sentencing U
CRT27/2.12.2021/JC 6 HCCC 172 & 173/2020(1)/Sentence
V V
A range appropriate for 10 grammes to 50 grammes which would A
attract a sentence of between 5 and 8 years. The guidelines
set for trafficking in 61.13 grammes of cocaine place the
B defendant in the sentencing bracket for quantities between B
50 grammes and 200 grammes and the relevant sentencing range
is 8 to 12 years’ imprisonment. That is the sentence which
C C
would be imposed following a conviction after trial.
D Discount for Plea of Guilty D
The well-accepted sentencing principles recognise that where
E an accused person pleads guilty at the earliest practicable E
moment, a discount from the appropriate starting point of
33 per cent would be applicable.
F F
Circumstances Applicable to Ms Chu
G G
The position is different in relation to the discount which
might be accorded to a person who pleads guilty at a later
H stage. In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 , the Court H
of Appeal conducted a principle review of the nature of the
I
discount from the sentence appropriate for a person who is I
convicted after trial to be accorded to a person who pleads
guilty. As noted already, the Court of Appeal held that
J where a person pleads guilty at the earliest practicable J
moment, a discount of 33 per cent would ordinarily be
accorded to such person. The court also considered two
K other scenarios. One scenario was where the accused had K
been committed for trial to this court but then pleaded
L guilty before the matter was listed for trial. The court L
suggested in that circumstance, a discount of 25 per cent
from the appropriate sentence for a conviction after trial
M would be appropriate. The second scenario mentioned in Ngo M
Van Nam (above) was a plea of guilty on the first day of
trial. The suggested discount for such a situation was 20
N per cent. N
O The Court of Appeal also indicated a sentencing judge has an O
overriding discretion in determining whether to accord some
form of discount and, what that discount might be. The
P present set of circumstances does not align with these P
scenarios contemplated by the Court of Appeal. The
determination of what the appropriate discount is in the
Q Q
present situation must be derived by the use of analogy to
the circumstances contemplated by the Court of Appeal and
R the consideration of the underlying purpose for the R
discount. So far as the underlying purpose of the discount
is concerned, the principal focus of the Court of Appeal was
S that such a discount reflected the pragmatic concern to S
encourage an early plea to reduce pressure on court time and
resources. The court held that the issue of remorse was
T T
largely subsumed in the suggested discounts.
U U
CRT27/2.12.2021/JC 7 HCCC 172 & 173/2020(1)/Sentence
V V
A Circumstances Appropriate to Mr Lau A
The position in relation to Mr Lau is that beyond the 33 per
B cent ordinarily accorded to a person who pleads guilty at B
the earliest practicable moment is his assistance to the
prosecution.
C C
It has always been the position at common law that an
D offender convicted of crime will receive credit against his D
sentence for any assistance which has been rendered to law
enforcement agencies and the authorities for that are Z v
E HKSAR [2007] 10 HKCFAR 183, 1 HKLRD 977, 2 HKC265, R v AXN E
[2016] EWCA Crim 590, [2016] 1WLR 4006, [2016] 2 Cr App R(S)
33 and the principles were articulated in Z v HKSAR where Li
F F
CJ held:
G “It is the policy of the courts to take into account in G
mitigation of sentence useful assistance the defendant
has given to the authorities and usually to give an
H appropriate reduction from the sentence which the H
defendant would otherwise have received. The
I
assistance is most often given by the defendant after I
his arrest for the offence for which he is being
sentenced (“post-arrest assistance”). There may be
J occasions where the assistance is given by the J
defendant before his arrest.”
K And then Li CJ gives the rationale for the policy is: K
L “The policy of the courts to recognise useful L
assistance to the authorities in mitigation of sentence
is based on the public interest. It is in the public
M interest that appropriate punishment should be imposed M
on defendants convicted of criminal offences. But at
the same time, the prevention, detection and
N prosecution of crime is also in the public interest. N
The use of the informer is a powerful weapon in the
O hands of the law enforcement agencies in society's O
fight against crime. Criminals should be encouraged to
inform on other criminals. Honour among thieves should
P be discouraged. Indeed, dishonour and betrayal among P
thieves should be encouraged.
Q Q
The courts have therefore adopted the policy of
accepting useful assistance to the authorities as a
R mitigating factor. A discount to the sentence which R
would otherwise have been imposed is usually given for
such assistance. This is a common approach in many
S jurisdictions. Its object is to provide an incentive S
for offenders to co-operate with the authorities. It
encourages them to assist by giving information about
T T
the criminal activities of others, by giving evidence
in prosecutions brought and the like. It must be
U recognised that the offender would be receiving a U
CRT27/2.12.2021/JC 8 HCCC 172 & 173/2020(1)/Sentence
V V
A punishment which is less than that which his crime A
would otherwise have deserved. But this is considered
justified in the overall public interest. The courts'
B approach in this regard is a pragmatic one.” B
Li CJ held that in order to obtain a recognition by way of
C C
reduction of sentence, the assistance should be “useful
assistance”. In this regard, Li CJ suggested that the
D courts look into a number of factors including: D
“The nature and extent of the assistance. In relation
E to this, matters which are relevant include: the E
degree to which the defendant gave full and frank
disclosure; the truth and reliability of the
F F
information; the range and seriousness of the criminal
activities disclosed; the significance and usefulness
G of the information and the extent to which it could G
potentially assist or had actually assisted the
authorities; and whether the authorities were already
H in possession of the information and whether the H
defendant believed this to be the case; the extent of
I
the defendant’s assistance, in particular, whether he I
was prepared to give evidence.”
J Li CJ also suggested a range of possible discounts and he J
held:
K “...where an appellant had not only given information K
but had proceeded to give truthful and material
L evidence, the Court of Appeal has given a usual L
discount of 50 per cent (including the one-third
reduction for pleading guilty).”
M M
To provide some context, there are also very rare
circumstances where a person is characterised as a “super-
N grass” who might receive as much as two-thirds off his N
sentence. In HKSAR v Cheung Chi Yuen [2018] 2 HKLRD 1396,
O the Court of Appeal set out the considerations for that O
“25. From the comments in these cases and other
P judgments where the characteristics of a supergrass P
have been discussed, it can be said that in order to
qualify as a supergrass:
Q Q
(1) the assistance provided by a defendant must relate
R to crimes of great gravity; R
(2) the nature of the defendant’s assistance must be
S significant. It must be significant in the sense S
that it can be said of the assistance, where the
defendant does not testify, that it is a key
T T
reason why other offenders are brought to justice;
or, where the defendant does testify, that his
U evidence was a crucial part of the prosecution U
CRT27/2.12.2021/JC 9 HCCC 172 & 173/2020(1)/Sentence
V V
A case. Often it will be able to be said that A
without the defendant’s assistance the particular
crime would have gone undetected; the particular
B offenders would have gone unidentified or that the B
particular criminal activity would have gone un-
prosecuted;
C C
(3) the assistance itself must also be substantial.
D For example, the assistance may be on-going over a D
period of time and may involve multiple acts of
assistance such as the giving of statements, the
E participation in identification parades and the E
testifying in multiple trials including re-trials;
F F
(4) the assistance will often expose the defendant, or
his family or others close to him, to the risk of
G harm. Although this is commonly encountered as a G
feature of the supergrass it is not a
prerequisite. Where it is encountered, then
H clearly the greater the risk of harm, and the more H
serious the harm to which the defendant and/or
I
those close to him are exposed, the more likely it I
is that the defendant will fall into the
supergrass category.
J J
26. When determining whether a defendant falls into
the supergrass category the sentencing court must
K consider the evidence in the round, having regard to K
all the matters we have set out above, but remembering
L that to qualify for a two-thirds discount there must be L
present features that distinguish the defendant from
the normal cooperating accomplice who testifies against
M his co-accuseds. The true supergrass is an exceptional M
category of cooperating defendant who has been
described as being “extremely rarely encountered.”
N N
Against that, it is recognised that assistance such as
O controlled deliveries, even where they fail, is deserving of O
recognition by way of discount above and beyond the ordinary
33 per cent. Generally speaking, the maximum in that
P context is about 40 per cent. P
In this case, Mr Lau was prepared to testify against Ms Chu
Q Q
and, indeed, was scheduled to do so as the first prosecution
witness at her trial. Her plea of guilty obviated the
R necessity for his testimony. I am informed by the R
prosecution that they regarded his assistance as substantial
and that his witness statement is true.
S S
Role of the Accused
T T
It is critical to determine the role of the accused in the
crime, for that you can see HKSAR v Herry Jane Yusuph [2021]
U 1 HKLRD 290, [2020] HKCA 974. In that case, the Court of U
CRT27/2.12.2021/JC 10 HCCC 172 & 173/2020(1)/Sentence
V V
A Appeal recognised that although the analytical starting A
point for the sentencing guidelines for drugs such as
cocaine start on the premise of the sentencing for a courier
B or a storekeeper, the court indicated there could be a range B
of culpability even if the trafficker is characterised as a
keeper or courier. The Court of Appeal held that an
C C
accurate characterisation of the role of the accused is
critical because, in appropriate cases, it would be open to
D the sentencing court to sentence the accused above or below D
the mathematical application of the relevant guideline. The
Court of Appeal rejected the sentencing approach in
E trafficking in dangerous drugs where the sentence was based E
solely on narcotic content.
F F
The Court of Appeal identified six analytic steps:
G (1) identify the seriousness of the offence by G
reference to the relevant sentencing band
applicable;
H H
(2) assess the culpability of the accused by reference
I
to the evidence and circumstances. In this I
regard, the court recognised a wide range of
culpability where the courier or storekeeper rank
J at the lowest level of this hierarchy; J
(3) consider whether it is necessary to go above or
K below the arithmetic calculation within the K
guidelines applicable to the narcotic amount the
L subject of the charge. In this regard, if, for L
good reason, the sentencer may consider it is
appropriate to fix a starting point above or below
M the arithmetic calculation or, indeed, outside the M
relevant sentencing guideline;
N (4) the relevant factors including the fixing of the N
starting point may also take into account
O aggravating factors; O
(5) determine whether the usually applicable discount
P for a plea of guilty should be modified; P
(6) look at the sentence overall to see whether it met
Q Q
the justice of the case, taking account of the
overall criminality of the accused.
R R
Application of Sentencing Principles
S Position of Ms Chu S
The mathematical calculation within the relevant sentencing
T T
band for trafficking in 61.13 grammes of cocaine produces a
sentence of 8 years and 3 months. There is little real
U evidence to determine the culpability of the accused for the U
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A trafficking in that 61.13 grammes of cocaine. There is A
material in the premises which is highly suggestive of those
premises being used to pack cocaine. In this regard, I
B refer to the multiple resealable bags and the electronic B
scale. Whether it was doing the packing or was preparing to
do the packing is not clear on the evidence. It could have
C C
been Ms Chu. Against that proposition, it was Mr Lau who
had the keys to the premises. The Summary of Facts provides
D no specific assistance on the topic. In paragraph 17 of the D
Summary of Facts accepted by Ms Chu, it says that Ms Chu
“now accepts and admits that on 26 November 2018 together
E with Mr Lau, she unlawfully trafficked in a dangerous drug”. E
That is of no specific assistance as to the role of Ms Chu.
F F
I am prepared to accept the assertion and mitigation that Mr
Lau was the dominant person in the relationship. I think it
G is highly likely that she was blinded in her judgment by G
that fact and by love. She was, nevertheless, trafficking
in a dangerous drug. I propose to adopt a slightly lower
H starting point to recognise this dominance and the H
relationship between Ms Chu and Mr Lau. I propose to reduce
I
on that account the starting point to 7 years and 6 months. I
I accept that the accused is truly remorseful now. In her
J mitigation letter, she expresses her regret and then says J
“that is why I took the initiative and admitted my
wrongdoing and to shoulder the responsibility”. Well, she
K has taken a very long time to come to that position. K
Indeed, she has been on bail since 28 November 2018.
L L
There was, following the filing of the indictment, a
management hearing of the case on 30 July 2021 and there was
M nothing which suggested that Ms Chu was considering taking M
responsibility for her conduct. I was informed by her
counsel that since about October, she has not been attending
N discussions for preparation of the case. There is also a N
suggestion that she was not reporting for bail. A condition
O of her bail was daily reporting to a police station. There O
is no specific evidence on when she stopped reporting to the
police. As I have already indicated, she did not attend on
P the date appointed for her arraignment. She was apprehended P
once the court issued a warrant for her arrest.
Accordingly, the assertion by Ms Chu of taking initiative
Q Q
and shouldering responsibility has to be taken with
something of a large grain of salt. A highly respectable
R view of the matter is that if this was her position, the R
time for taking the initiative and shouldering the
responsibility was at the time of committal. However,
S another view is that this woman who for quite some time was S
for some reason also almost certainly because of fear, her
facing up to responsibilities. It is not easy to resolve
T T
those two positions and, many instances they are
irreconcilable. I incline towards the latter view.
U U
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A Clearly, Ms Chu did not shoulder her responsibility on the A
first day of trial. I strongly suspect that her
non-attendance on that date was simply an inability to come
B to terms with her situation and face up to reality. That is B
something which is seen in some people. The reaction is
regrettable and has actually caused court time to be lost.
C C
That court time is part of the public resources but, the
reality is that it was caused in her case by an all too
D human failing. Accordingly, in the context of what discount D
to accord to the accused for her belated plea of guilty, I
do not think it is appropriate to hold her human failing
E against her. E
That leaves the question of what discount is appropriate. I
F F
think it is likely I will be accused of being over-generous
but I propose to discount the appropriate starting point by
G 22 per cent. G
Position of Mr Lau
H H
Mr Lau pleaded guilty at the earliest practicable moment to
I
both charges on the charge sheet. On the mathematical I
calculation of the guidelines for the quantity of
30.8 grammes of cocaine, so far as the 1st charge is
J concerned, that results in a starting point of 6 years and J
7 months. In relation to the application of the
mathematical guidelines for 61.13 grammes of cocaine, the
K starting point as indicated above, in relation to the K
position of Ms Chu, is 8 years and 3 months. The possession
L of the drugs and the trafficking in them were very close in L
time although in different locations. I think that an
overall sentence crafted to reflect the total amount of
M narcotic would be a just approach. That would involve 91.93 M
grammes of cocaine. On a mathematical application of the
guidelines, that would put the total in 8 years to 12 years
N sentencing bracket, resulting in a sentence of 9 years and 1 N
month. Although it will be necessary to sentence Mr Lau on
O separate counts, the underlying premise of the ultimate O
sentence is to achieve a totality in sentence which would
reflect that amount of cocaine.
P P
As to the role of the accused, I am sure he was the
organiser of this trafficking venture. I see no basis on
Q Q
which he should be sentenced with other than an application
of the mathematical outcome of the quantity of cocaine in
R respect of the guidelines. His drug history is strongly R
supportive of that proposition.
S The real issue for Mr Lau is his assistance to the S
authorities. He has provided witness statement and has
indicated a willingness to testify. I am informed and I
T T
accept he would have testified but for the fact that Ms Chu
pleaded guilty when she did. While, as I have said, I am
U perfectly prepared to accept the remorse, I am in no doubt U
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A that the fact that Mr Lau was prepared to testify against A
her was relevant to her decision-making. In my opinion, his
testimony was likely to be accepted by the jury as true.
B The question remains what discount to accord to the accused. B
In my opinion, his assistance and preparedness to testify
places him well above the 40 per cent bracket. I am minded
C C
to accord to him a discount of 50 per cent because of his
assistance.
D D
On the premise of assistance 50 per cent in relation to
Charge 1, the appropriate discounted sentence would be 3
E years and 3 months. On the same premise, in relation to E
Charge 2, the discounted sentence would be 4 years and 1
month. If the whole of the cocaine have been brought as one
F F
charge, the discounted sentence would have been 4 years and
6 months.
G G
Resolution
H In relation to Ms Chu, for the reasons I have outlined, the H
sentence I impose on Count 2 is 6 years and 2 months.
I I
In relation to Mr Lau, after discount on Count 1, it is 3
years and 3 months. The sentence on Count 2 is 4 years and
J 1 month. In order to achieve totality, which would be J
appropriate on the basis of the cocaine in both charges is
combined, I order that 5 months of the sentence in Count 1
K be served consecutively to the sentence on Count 2 and the K
balance to be served concurrently.
L L
(Discussion re bail and sentence)
M Ms Chu, first of all, I apologise to you. I made a mistake M
and I am now going to correct that. The starting point for
you should have been 7 years and 6 months from which a
N reduction of 22 per cent should be taken and the ultimate N
result is 5 years and 10 months on Count 2 and that is the
O sentence of you of the court. O
P P
Q Q
R R
S S
T T
U U
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