HKSAR v. LAM KA HUNG, ANDY

DCCC 500/2023

[2023] HKDC 1833

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 500 OF 2023

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REASONS FOR SENTENCE

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The Charge

1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, namely 7.37 grammes of a mixture containing 5.81 grammes of heroin hydrochloride (“the Drug”), contrary to section 4(1)  and (3)  of the Dangerous Drugs Ordinance.

The Facts

2.  The amended summary of facts agreed by the defendant revealed that whilst conducting an anti-crime patrol in the Wong Tai Sin area on 28 November 2022, the police found the defendant strode furtively at No.1 rear staircase, UG Floor, Temple Mall South, No. 103 Ching Tak Street, Wong Tai Sin.

3.  The police then intercepted and then searched the defendant. The Drug was found from the right chest pocket of the defendant’s jacket.

4.  In a subsequently held video recorded interview, the defendant revealed to the police that (i)  about an hour prior to his arrest, he was approached by a male who asked the defendant to bring a plastic bag to Ching Tak Street for a remuneration of HK$1,000, (ii)  the defendant knew the contents of the plastic bag were heroin, (iii)  he proceeded to Temple Mall South and (iv)  he did not manage to see the person whom he had to hand the drugs to.

Mitigation

5.  Mr. Kan who appeared for the defendant made thorough submissions in writing and supplemented orally today.

6.  Mr. Kan told this court that the defendant is a 52-years-old married man. His wife is 47 years of age and is currently living in the mainland. The defendant received up to Form 3 education in Hong Kong. He had to depend on Comprehensive Social Security Assistance since 2014 and is currently receiving HK$2,880 per month.

7.  The defence acknowledged that the defendant had been sentenced by various courts on 13 different occasions (involving 18 charges)  in the past. His last conviction was in 2006.

8.  Mr. Kan said the defendant demonstrated his remorse by pleading guilty to the charge he faces. Mr. Kan prayed-in-aid the Court of Appeal judgment of HKSAR v. Herry Jane Yusuph [2021] 1 HKLRD 290 and urged this court to consider the role played by the defendant in the present case and submitted that the defendant was a courier simpliciter and not the mastermind of the case. Mr. Kan invited this court to consider a notional starting point of 3 ½ years imprisonment instead of applying a strict arithmetical approach of adopting a starting point of 3 years and 8 months. 

9.  It was urged upon by Mr. Kan that this present conviction was the defendant’s first ever trafficking in dangerous drug conviction.

10.  Mr. Kan submitted that there exists no aggravating factors on the part of the defendant.

Sentence

11.  The narcotic content of the Drug is 5.81 grammes of heroin hydrochloride. According to the guidelines set down in R v. Lau Tak-ming [1990] 2 HKLRD 370, such quantity falls within the band of 2-5 years’ imprisonment.

12.  Having considered all the circumstances of the case and the submissions made on behalf of the defendant, this court is prepared to accept that the defendant was a courier and not the actual trafficker in the present case.

13.  I take 42 months imprisonment as the starting point.

14.  I accept the submissions made by Mr. Kan in respect of the criminal records of the defendant. For the purposes of sentencing, I do not treat the defendant as a previous offender nor do I regard his previous criminal records as an aggravating factor. I see no other aggravating factors exist either.

15.  Apart from the guilty plea of the defendant, I see no other mitigating factors exit.

16.  The defendant is entitled to 1/3 sentencing discount as a result of his guilty plea.

17.  The sentence of the defendant will therefore be reduced from 42 months to one of 28 months’ imprisonment.

Conclusion

18.  The defendant is sentenced to 28 months’ imprisonment.