HKSAR v. LAI CHI HO

DCCC 125/2022

[2022] HKDC 1479

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 125 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Lai pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  Particulars are that he, on 1 October 2021, on a light goods vehicle bearing registration mark WV6872, near the junction of Soy Street and Shanghai Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 24.0 grammes of a solid containing 22.3 grammes of cocaine.

Facts admitted by Mr Lai

3.  On 1 October 2021, at about 8:44 pm, Mr Lai was standing beside an LGV parked near the junction of Soy Street and Shanghai Street.  He took an object from an unknown male riding on a motorcycle before the latter left.  Mr Lai then got into the driver’s seat of the LGV.

4.  Patrolling police intercepted Mr Lai.  Mr Lai immediately put his right hand under the driver’s seat.  Police searched the LGV and found a resealable plastic bag containing 24 grammes of a solid containing 22.3 grammes of cocaine inside a black plastic bag underneath the driver’s seat.

5.  Mr Lai was arrested for trafficking in a dangerous drug.  Under caution, Mr Lai admitted that the stuff was “Coke” which he purchased for $15,000 for self-consumption.

6.  Back at the police station, a body search on Mr Lai revealed cash of $3,200.20 and 3 mobile phones on him.

7.  In a cautioned VRI conducted the next day, Mr Lai admitted:-

(a) He knew that “Coke” meant crack cocaine; he consumed cocaine by putting it into his cigarettes;

(b) He purchased the drug for $15,000 from an unknown male in a Yau Ma Tei park for self-consumption; he did not have the seller’s means of contact;

(c) After purchasing the drug, he went back to the LGV and placed it under the driver’s seat;

(d) The unknown male on the motorcycle was his friend “Ah Hung”; they just chatted with each other before the police intercepted him; and

(e) He generated income from “GOGOVan” business; the LGV was rented by his father for that purpose.

8.  The estimated street value of the drug was $32,208.

9.  Rapid drug test on Mr Lai as a driver gave a nil result.

10.  No dangerous drug or drug paraphernalia was found in Mr Lai’s residence upon a house search.

11.  Mr Lai now admits he possessed the drug for the purpose of trafficking.

Criminal record

12.  Mr Lai has 6 previous convictions none similar.

Antecedents

13.  Mr Lai is aged 34 (33 at the time of the offence), studied up to secondary school level, was a driver at the time of arrest.  Mr Lai lived with his parents in a public housing estate in Tin Shui Wai.

Mitigation

14.  Mr Ivan TY Cheung of counsel assigned by Director of Legal Aid mitigated on behalf of Mr Lai.  The following is a summary of the mitigation submissions.

15.  Before being arrested, Mr Lai, single, was a GoGoVan driver earning about $30,000 to $40,000 a month.  He was going to marry his fiancée shortly.

16.  Mr Lai’s family and friends are in court to give him support.

17.  The applicable band of sentence for trafficking in between 10 and 50 grammes of cocaine is 5 to 8 years’ imprisonment (R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).

18.  For the 22.3 grammes of cocaine in this case, the mathematical starting point would be 71 months.

19.  Mr Cheung prays for a full 1/3 discount on behalf of Mr Lai who made a timely plea of guilty.

20.  It was submitted that part (but not a substantial proportion) of the seized drug was intended for self-consumption.

21.  Mr Cheung referred to HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, at para 69, where the Court of Appel said, “Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.”

22.  Mr Cheung submitted that according to Mr Lai’s instructions, he became a drug addict in 2012 when he was 24; that he took cocaine by putting cocaine into cigarettes to smoke and consumed about 1 gramme per day.  Mr Cheung submitted a copy of the CSD Urine Test Report to show that Mr Lai’s urine sample was taken about 4 days after arrest and it was tested for drugs and the result was cocaine positive.  This tallied with his admission under caution that that the drug was for his own consumption. It was submitted that a proportion of the seized drug was possibly for his own consumption.

23.  In the circumstances, it was submitted, the court may consider exercising the discretion to afford Mr Lai a discount of more than 1/3 from the starting point.

24.  Mr Cheung however acknowledged that the present offence was committed whilst Mr Lai was on bail for some previous C & E offences.

25.  Mr Cheung submitted a mitigation letter written by Mr Lai himself in Chinese.  The contents give a history of his drug abuse and also tell the reader that he committed the offence because of financial pressure; that he is remorseful and wants to turn over a new leaf; that he now understands the company of close relatives is more important than money and what money can buy.  In summary, Mr Lai asked in the letter for a lenient sentence so he may return to his family as soon as possible and re-establish a positive life.

26.  The lowest possible sentence is asked for on behalf of Mr Lai.

Sentence

27.  Trafficking in a dangerous drug is a serious offence for which deterrent tariff sentences have been set down by the Court of Appeal.

28.  For all that has been pleaded on behalf of Mr Lai, I adopt a starting point of 69 months and I will give him the full 1/3 discount.

29.  The mitigation about part-consumption and the aggravation due to commission of the offence whilst on bail simply cancelled each other out.

30.  There are no other mitigating factors that I can see which will assist Mr Lai.

(Mr Lai, please stand)

31.  I sentence Mr Lai to 46 months’ imprisonment.