HKSAR v. LEE SHING HIN, CHRIS

DCCC 1126/2022

[2023] HKDC 1702

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1126 OF 2022

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.  About 8:20 p.m. on 17 August 2022 (a Wednesday), PC 29231 (PW1)  stopped the defendant outside No.3 Central Pier for enquiry.

3.  Upon search, PW1 found the following items in the defendant's cross-body bag :-

(i)  6 resealable plastic bags which contained a total of 1.69 grammes of a solid containing 1.4 grammes of cocaine;

(ii)  12 resealable plastic bags which contained a total of 7.23 grammes of a solid containing 5.79 grammes of cocaine; and

(iii)  35 resealable plastic bags which contained a total of 4.98 grammes of a solid containing 4.06 grammes of cocaine.

4.  PW1 arrested the defendant. Under caution, he said those were "Coke" for self-consumption.  PW1 also seized from the defendant $1,300 odd in cash and a mobile phone.

5.  In his video recorded interview, the defendant admitted, inter alia, that he had just been dismissed from his job and was stressed out.  Last Sunday, a friend named Peter gave him a cigarette containing cocaine.  The defendant smoked it and felt relaxed.  He then bought 53 bags of cocaine from Peter at $20,000 for self-consumption.  He had only started to take drugs last Sunday.  The defendant was waiting for the ferry to Cheung Chau.  He wanted to consume drugs in Cheung Chau so he took them with him.

6.  The defendant now admits that he possessed all the cocaine for the purpose of unlawful trafficking.

Mitigation & Sentence

7.  The defendant is 23 and has a clear record.  Defence counsel Mr. Leung informed me that the defendant is hearing-impaired.  He is single but has a son (aged 2)  with his ex-girlfriend, who left them when the boy was 1 year old.  The defendant has been looking after his son since.  At present, the boy is under the care of the defendant's mother (aged 48)  and stepfather (aged 53).

8.  In mitigation, Mr. Leung submitted that the defendant has only completed Form 3, but has worked hard in the restaurant business.  Eventually, his boss offered him partnership.  With salary and profit-sharing, the defendant was earning about $36,000 per month. About a year ago, the defendant met another girlfriend.  She used different excuses to ask the defendant to borrow money from financial companies.  Before he realized it, the defendant has racked up about $480,000 in debt.  When he asked his girlfriend to help him repay his debts (which she has agreed to do so at the time of borrowing), she disappeared and became out of contact.  Then, a former schoolmate came along and lured the defendant into trafficking drugs in order to repay his debts.  Mr. Leung confirmed that he makes no self-consumption claim as a mitigating factor.

9.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Furthermore, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

In the present case, the defendant trafficked in 11.25 grammes of cocaine. Applying a strict arithmetical approach, the appropriate starting point is 5 years and 1 month. Since this is the defendant's first conviction, I adopt a starting point of 5 years for ease of calculation. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The defendant's story, if true, is indeed sad, but there are many lawful ways to deal with his debts instead of engaging in drug trafficking. There is not much I can do to express my sympathy for his toddler son, who would lose his father for a few years. With some sadness, I must still sentence the defendant to 40 months' imprisonment.