HKSAR v. LAU CHING HIN

DCCC 769/2019

[2020] HKDC 71

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 769 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 10.9 grammes of a solid containing 5.25 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1) and one charge of possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 2).

2.  Full particulars of the offences are set out in the facts admitted by the defendant yesterday. 

Charge 1

3.  In summary at about 1:15 p.m. on 7 June last year the defendant was intercepted for Customs checking at the Customs Departure Hall of Lok Ma Chau Spur Line Control Point. 

4.  The defendant placed all his belongings on a table including a plastic tissue bag which he took out from his right front trouser pocket.  Customs officers found the cocaine inside the plastic tissue bag. 

5.  Under caution the defendant claimed that he knew there was dangerous drug in the tissue bag but did not know what exactly it was and that he was helping a person called “Zombie” take the dangerous drug through the customs in return for a reward of $500. 

6.  The estimated street value of the cocaine was around $14,115.50.

Charge 2

7.  Later at about 7:35 p.m. the same day the defendant was escorted to his residence in Tin Shui Wai for a house search.  Inside a wardrobe Customs officers found a bottle together with a straw and glass part and six spare glass parts as shown in the photographs submitted to court. 

8.  Under caution the defendant said the bottle which belonged to him was used for inhaling ice. 

Mitigation

9.  In passing sentence, I have carefully considered the written and oral submissions of Ms Cheung, including that the defendant has regularly secured part-time employment and while on remand has attended Christian gatherings to strengthen his will power to reform[2].

10.  I have read the mitigation letter written by the defendant’s mother who continues to show great support for her son and hopes he will turn over a new leaf[3].   I also note that the defendant’s father has attended court to show his support.

Charge 1

11.  The courts have equated for sentencing purposes cocaine with heroin[4].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[5].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

12.  On a purely arithmetical approach a starting point of just less than 3 years and 7 months is appropriate for trafficking in 5.25 grammes of cocaine.  

13.  In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[6].

14.  The defendant has appeared in court on four occasions, most recently in 2015 and 2017 when he was convicted of dangerous drug offences, including trafficking in dangerous drugs when he was sentenced to 12 months’ imprisonment in June 2017.

15.  I am satisfied a starting point of 3 years and 9 months’ imprisonment is appropriate. 

International element

16.  The exportation of cocaine adds an international element to the offence and is an aggravating feature of sentence. 

17.  In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[7].

18.  Sentence was adjourned for Ms Cheung to conduct further research on the appropriate enhancement.

19.  I have carefully considered the supplemental written submission of Ms Cheung. 

20.  Ms Cheung relying on two sentence cases in the High Court, HKSAR v Dong Juan and HKSAR v Leung Hiu Wai Jason,submits that the court may enhance the sentence by less than three months[8].

21.  In HKSAR v Dong Juanthe High Court enhanced the sentence by 2 months for trafficking in 50.1 grammes of ice[9].   I note that the only evidence of exporting was the defendant’s confession, the defendant having been arrested in Tsuen Wan. 

22.  In HKSAR v Leung Hiu Wai Jason,the High Court also enhanced the sentence by 2 months for trafficking in 33.8 grammes of cocaine[10].

23.  In HKSAR v Choi Chun Wo, heard after HKSAR v Dong Juan and before HKSAR v Leung Hiu Wai Jason,the Court of Appeal stated that at the lower end of the scale a sentencing court must ensure that the level of enhancement is just and proportionate[11]. 

24.  The court held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice.  The decision of the Court of Appeal does not appear to have been brought to the attention of the sentencing judge in HKSAR v Leung Hiu Wai Jason.

25.  I am satisfied for exporting 5.25 grammes of cocaine the starting point should also be enhanced by 3 months to 4 years’ imprisonment.

26.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 8 months’ imprisonment.

Charge 2

27.  This is the defendant’s second conviction for possession of apparatuses fit and intended for the inhalation of a dangerous drug.   I am satisfied a starting point of 6 months’ imprisonment is appropriate. 

28.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

29.  The two charges are separate and distinct involving different dangerous drugs.  The defendant was taking cocaine to China for reward whereas the apparatuses was for his own consumption of ice.  I am satisfied subject to totality that a consecutive sentence is appropriate for possession of the apparatuses. 

30.  Ms Cheung submits the only evidence on charge 2 is the confession of the defendant that the bottle belonged to him. 

31.  In HKSAR v Ma Ming[12] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

32.  The court did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

33.  Taking into account the defendant’s co-operation with the police I am satisfied a total sentence of 2 years and 10 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[13].  

Sentence

34.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 8 months’ imprisonment; and

Charge 2 – 4 months’ imprisonment with 2 months consecutive and 2 months concurrent to charge 1.

The total sentence to be served by the defendant is 2 years and 10 months’ imprisonment.