HKSAR v. LAM RAYMOND

DCCC 306/2022

[2022] HKDC 1200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 306 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to one charge of trafficking in a dangerous drug.

Facts of the case

2.  On 24 January 2022 at about 18:16, police officers were on patrol in Shanghai Street, Yau Ma Tei, Kowloon.  The Defendant was spotted sitting in the driver seat of a private vehicle XT8457 (“XT 8457”)  stopped outside No. 360 Shanghai Street, Yau Ma Tei, Kowloon.  The engine of XT8457 was still running at that time.  As the window glasses were dark, police officers approached the Defendant and pointed that out to the Defendant. Defendant immediately lowered his head, avoided eye contact and behaved furtively.  The Defendant was asked to alight from XT8457 for a search. 

3.  As a result of the search, a transparent resealable plastic bag containing 9 smaller transparent resealable plastic bags containing a total of 1.35g of a solid containing 1.24g of cocaine was found inside the pocket of the Defendant’s jacket. 

4.  PW1, PC14328, arrested and cautioned the Defendant for trafficking in dangerous drug.  Defendant remained silent. 

5.  At about 1822 on the same day, search of XT8457 produced among other things: -

(a)  From underneath the driver seat, a transparent resealable plastic bag containing: -

(1)  17 plastic bags containing a total of 2.54g of a solid containing 2.18g of cocaine;

(2)  14 plastic bags containing a total of 2.03g of a solid containing 1.47g of cocaine; and

(3)  4 plastic bags containing a total of 1.35g of a solid containing 1.01g of cocaine.

(b)  On the floor mat underneath the driver seat, a HK$20 banknote folded into a packet containing 0.13g of a solid containing 0.11g of cocaine;

(c)  On the floor mat underneath the driver seat, a bag containing cash of HK$11,120; and

(d)  2 iPhones and 1 other mobile phone.

6.  Defendant was further cautioned for the dangerous drugs found inside XT8457 upon which Defendant remained silent. 

7.  At about 0142 on 25 January 2022, search of the Defendant’s residence was conducted and nothing suspicious was found. 

8.  A video-recorded interview was conducted on 25 January 2022 at 1452. Under caution, Defendant admitted, inter alia, that: -

(a)  he was on board of XT8457 alone in the driver seat at the arrest location;

(b)  XT8457 belonged to Defendant;

(c)  Dangerous drugs were found on Defendant upon search by police officers;

(d)  Defendant was shown the dangerous drugs found on the Defendant and inside XT8457;

(e)Defendant confirmed that the dangerous drugs belonged to him;

(f)  Defendant claimed that he bought the dangerous drugs for own consumption for HK$5,000 at about 1700 hours on 24 January 2022 from a friend whom he had no information to provide at a location in Mong Kok which he said he had forgotten;

(g)  Defendant claimed to have started consuming cocaine for half a year and that he would consume cocaine every night;

(h)  Defendant said he was waiting for a friend for clothes shopping and meal in that vicinity of the arrest location but he refused to provide information of his friend.

9.  The government chemist’s certificate confirmed all the drugs found and seized from the Defendant and inside XT8457 were dangerous drugs under the Dangerous Drugs Ordinance. 

10.  At all material times, Defendant possessed all the dangerous drugs seized for the purpose of unlawful trafficking. 

Criminal Record

11.  Defendant had been sentenced by the court on seven occasions involving a total of 7 offences, including four relating to dangerous drugs and one of the said four offences was similar to the present one. 

Mitigation

12.  Defendant, aged 47, is separated from his wife and has two children aged 10 and 8 respectively.  The children are now living with his wife.  The Defendant also has a 70-year-old father and two siblings. 

13.  He received education up to Form 1 level.  He had various jobs before such as factory packing worker, hairdresser and self-employed van driver. Before the arrest for the present offence, he was a part-time GoGoVan driver. 

14.  He is remorseful for his wrongdoing and promises not to reoffend.  He begs for leniency.  He also wrote a letter to the court mainly expressing his remorse, his worries for his family and their financial needs and his wish to start anew as soon as possible. 

15.  The Defendant’s role in the present case was merely a courier.

16.  Part of the cocaine seized will be used by the Defendant for his own consumption.  In support of this mitigation the defence relies on the Defendant’s statement under caution in the VRI that the cocaine was for his own consumption and the urine test, which was conducted on the Defendant on 27 January 2022, showed a positive result in relation to cocaine. 

17.  The Defence also invited the court to refer to a number of sentencing authorities[i].

Sentence

18.  I have carefully considered all the mitigation put forward by Mr Kan on behalf of the Defendant.  As rightly accepted by the Defence, the sentencing guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper, HKSAR v Herry Jane Yusuph.  The sentence upon conviction after trial for trafficking in cocaine up to 10g is between 2 years and 5 years’ imprisonment (see AG v Pedro Nel Rojas and R v Lau Tak Ming). Arithmetically, for a courier or storekeeper, trafficking in 6.01g of cocaine would therefore attract a starting point of 45.62 months. 

19.  Taking into account the circumstances in which the subject cocaine was found and seized from the Defendant and XT8457 and the mitigation before me, I am of the view that there is nothing that would reduce his role and/or culpability as a courier and that it is appropriate to treat him as a courier to which the guideline applies arithmetically, that is 45.62 months. 

20.  Although the Defendant had 4 drug-related records, I note that three of them were records of more than 15 years ago.  This appears to suggest that he had tried to live a law-abiding life for some years until he committed the offence of trafficking in dangerous drug in 2017.  Given the long lapse of time, I would not place any weight on those pre-2017 convictions. 

21.  The most recent records involved two non-drug offences for which he was sentenced in 2021.  In the circumstances, I am prepared to deal with him leniently and will not treat his previous convictions as an aggravating factor. 

22.  Personal circumstances are rarely of any weight, HKSAR v Daresa Mariam Guma [ii]. I also do not find anything in the Defendant’s personal circumstances to justify any reduction. 

23.  On the issue of own consumption, the defence confirms that the Defendant does not wish to give evidence and is not claiming that a significant portion of the subject cocaine was for his own consumption. 

24.  Taking into account, inter alia, that the Defendant was found sitting in the driver seat of a private car, the quantity of drug seized and the drugs were packed in a large number of resealable plastic bags and a bank note, I have no hesitation in rejecting a claim that a significant portion of the drugs was for his own consumption, if made. 

25.  Given the urine test of the Defendant being positive to cocaine, I am prepared to accept that small part of the cocaine may have been for his own consumption.  In deciding how much weight should be attached to the fact that part of the subject cocaine may have been for his own consumption, I have considered the decision in HKSAR v Wong Suet Hau. 

26.  Having regard to all the circumstances of the arrest, the latent risk factor and the sentence for possession of drugs, I am satisfied that the starting point should be reduced by 3 months to 42.62 months.

27.  Giving the Defendant full discount for his guilty plea, I therefore sentence him to 28.41 months’ imprisonment and 0.41 months is rounded down to represent 12 days, that is 28 months and 12 days’ imprisonment.