HKSAR v. CHAN LAP TAK, HERRY

DCCC693/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.693 OF 2009

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Reasons for sentence

1.  The defendant faces 2 charges of trafficking in dangerous drugs. The quantity of narcotics involved in charge 1 is 1.84g of cocaine and 0.01g of nimetazepam, and 6.6g of cocaine in charge 2. Particulars of the offences are that, in relation to charge 1, the defendant on 3rd April 2009, at the lift lobby of G/f, Block 20, Laguna City, Kwun Tong, Kowloon, unlawfully trafficked in 2.24g of a solid containing 1.84g of cocaine and 2 tablets containing 0.01g of nimetazepam, and in relation to charge 2, on the same day at flat F, 2/f, block 20, Laguna City, Kwun Tong, Kowloon, unlawfully trafficked in 8.15g of a solid containing 6.6g of cocaine. The defendant pleaded guilty to both charges, admitted to the contents of the summary of facts, and was duly convicted on both charges.

Facts

2.  The summary of facts that the defendant admitted to are as follows. At about 5:16am on 3rd April 2009, police officers observed the defendant and a male alighted from a private vehicle outside block 20 of Laguna City. The defendant entered the building with the said male.

3.  About 20 minutes later, the defendant appeared at the lift lobby and was intercepted by PW 1, DPC33491, who then conducted a body search on the defendant. 8 packets of suspected dangerous drugs, 2 tablets and a bunch of keys were found on him. PW 1 declared arrest and cautioned the defendant. Under caution, the defendant said he had nothing to say, that all the “coke” were for his own consumption and had nothing to do with his girlfriend. The defendant told the officer that he lived at flat F, 2/F of the same building.

4.  The defendant was brought to the said unit and was able to open the door to the flat with one of the keys found on the defendant earlier. A search was conducted of the flat and in a cabinet in the living room were found an electronic scale, 26 packets of suspected dangerous drugs and 4 piles of empty transparent plastic bags. Another electronic scale and a folded banknote containing suspected dangerous drugs were also found on a desk in the living room. Inside the kitchen, a beaker, a spoon and a pot, all containing suspected dangerous drugs were found.

5.  PW 1 arrested the defendant for trafficking in dangerous drugs and cautioned him. Under caution, the defendant claimed that the cocaine found in the pocket of his pants just now and the cocaine found in his home were for his own consumption and they had nothing to do with his girlfriend. The exhibits were seized and upon analysis by the government chemist, the narcotic contents as set out in the 2 charges were confirmed.

Previous convictions

6.  The defendant has 6 previous convictions. 4 of his previous convictions involved dangerous drugs, and of those, 1 conviction was for trafficking in dangerous drugs. That conviction was back in 1996 when he was sentenced to 7 years’ imprisonment.

Mitigation

7.  The defendant is 35 years old. Nothing much was put forward in mitigation on his behalf. A letter that the defendant had written himself while in custody was submitted, where the defendant tells the court that he is a drug user, that he had been in custody for some 7 months since his arrest for the present offence, that he is remorseful and feels ashamed for the commission of the offences. He promises not to be in breach of the law in the future and wishes for leniency.

8.  Mr. Tong for the defendant submitted that the sentencing tariff as set out in the case of R v Lau Tak-ming and Ors [1990] 2 HKLR 370 is applicable in the present case. Mr. Kevin Wong for the prosecution does not disagree with that. For narcotics contents, including cocaine, of up to 10g, the sentencing tariff is between 2 to 5 years’ imprisonment.

9.  Mr. Tong further submitted that the 0.01g of nimetazepam found in the tablet mentioned in charge 1 can be ignored for sentencing purpose given the relatively small quantity. I agree with that observation. On those basis, Mr. Tong suggested that a starting point between 3 to 3.5 years should be adopted.

Sentence

10.  I have taken into consideration the numerous previous convictions of the defendant, especially the previous conviction involving trafficking in dangerous drugs. I have noted that it was however committed some 13 years ago. Apart from the similar previous conviction, I do not see other aggravating factors.

Charge 1

11.  For charge 1, I adopt a starting point of 2 year’s imprisonment, granting the defendant the full 1/3 discount for his guilty plea, I sentence him to 16 months’ imprisonment.

Charge 2

12.  For charge 2, given the higher narcotic contents and the aggravating factor of a previous similar conviction, I find that an appropriate starting point is that of 4 years’ imprisonment. Granting the full 1/3 discount for his guilty plea, I sentence the defendant to 32 months’ imprisonment.

13.  Having considered the principle of totality, I order that the sentences be served wholly concurrently. The defendant is therefore sentenced to a total of 32 months’ imprisonment.