HKSAR v. LUK CHUNG MAN, BENJAMIN

DCCC 701/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 701 OF 2014

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REASONS FOR SENTENCE

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1. The defendant (male) (aged 39 years) appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. The particulars of offence avers that on 31 May 2014 at Staircase No 2, 3rd Floor, Houston Centre, No 63 Mody Road, Tsim Sha Tsui, Kowloon, unlawfully trafficked in a dangerous drug, namely 30.41 grammes of a solid containing 14.24 grammes of cocaine. 

Facts

3. This is a simple stop-and-search case during an anti-narcotic operation conducted by the police in Tsim Sha Tsui East.

4. According to the Summary of Facts, the defendant appeared and acting furtively outside the male toilet on the 3rd Floor of Houston Centre, No 63 Mody Road, Tsim Sha Tsui.  He was first seen entering the male toilet at around 1:27 am on 31 May 2014 for five minutes.  Half an hour later, he was again seen entering the same male toilet for another 15 minutes.  Feeling suspicious, a team of police officers decided to intercept the defendant when he came out of the toilet.

5. Upon search of the body of the defendant, a total of 15 plastic bags containing suspected dangerous drugs together with a folded HK$50 banknote containing suspected dangerous drugs were found.  There were also a transparent resealable plastic bag containing an electronic scale.  All these items were found in the right pocket of the defendant’s blue windbreaker that he was wearing.  Defendant was therefore immediately arrested and cautioned for the offence of “Trafficking in dangerous drugs”.

6. Under caution, the defendant admitted that he knew that those were dangerous drugs and he intended to sell those drugs.

7. At the time of arrest, he had with him cash HK$13,473, one mobile phone and two SIM cards on his person.

8. The dangerous drugs were later sent to the government chemist for analysis.  All the exhibits which contained suspected dangerous drugs were later analysed and found to have contained different quantities of cocaine with particulars as specified in the charge and the government chemist certificate.

9. All in all, there was a total of 30.41 grammes of a solid containing 14.24 grammes of cocaine.

10. The estimated street value of the cocaine seized was said to be about HK$29,893.

Criminal records and the background of the defendant

11. The defendant had two previous criminal records, all related to dangerous drugs.  The first one was in 2000 for “Possession of dangerous drugs” for which he was fined $2,000 and the second one involved two charges of “Possession of Part I poison” for which he was fined $400 each. 

12. Defendant had received Form 3 education level.  I was told that he has been working as a restaurant waiter and also a cashier.  Before he was arrested, he worked as a waiter, earning an average income of $10,000 per month.

13. He is a married man.  His wife just came to Hong Kong from the mainland.  The couple have a 3-year-old son who is just attending the kindergarten.  They have also a newborn daughter who is only 1 year old.

14. Defendant’s father passed away already.  His father actually separated with his mother when he was very young.  Defendant’s mother is now aged 58 and according to the letters of mitigation which I have read, she has suffered depression and had once committed suicide.  Defendant also had a younger brother who is living apart with the defendant. 

15. Today many family members and friends of the defendant also came to court to support the defendant.

Mitigations

16. In mitigation, the solicitor for the defendant, Mr P W Ho, acknowledged the fact that the offence with which the defendant was convicted was indeed a very serious offence and the defendant also accepts that he would have to be sentenced to imprisonment for this offence.  Mr Ho, however stressed to the court that the defendant had pleaded guilty which is a strong indication of remorse.  He said that the defendant was stupid to commit the offence and he was foolish to earn quick money to solve his economic problem to support the family.  Mr Ho said that the economic pressure of the defendant has increased enormously due to the birth of the newborn daughter.

17. Mr Ho had also submitted to the court eleven letters of mitigation handwritten by various family members and the friends of the defendant including the elderly grandmother of the defendant who is now aged more than 80 years old and now living in an elderly home. 

18. I have read those letters one by one very carefully.  I am not going to refer to each letter, suffice it to say that all these letters spoke of the fact that the defendant was a responsible father and a good son in nature and he was just foolish by resorting to commit crime in order to earn money.  The elderly grandmother of the defendant in particular was very worried about the defendant and the fact that she might not be able to see the defendant again and asked the court to be as lenient as possible.

Sentencing considerations

19. Trafficking in dangerous drug is of course a very serious offence. Anyone who was involved in this serious offence, once caught, will be expected to be dealt with severely by the court.

20. I have no doubt that the defendant is a filial son, a responsible father and a good brother in the eyes of his dear family members and friends.  The fact that a so many family members and friends turned up in court today to support the defendant showed that he had good family support which is a very good indication for his future rehabilitation. 

21. I have every sympathy for the welfare of the defendant’s wife as well as the son and daughter of the defendant.  All of them will be deprived of the care and the support of the defendant while the defendant serves his time in prison. 

22. However, as a responsible father, a filial son or grandson, the defendant should in fact think twice before committing the offence.  The Court of Appeal has said in numerous authorities in the past that in serious offences, family circumstances virtually played no part in mitigation and the serious nature of this offence also called for a deterrent sentence.

23. Sentencing for trafficking in cocaine is aligned to the guideline for trafficking in heroin referred in The Queen v Lau Tak Ming & others [1990] 2 HKLR 370.

24. According to the guideline, for a quantity of drugs between 10 to 50 grammes, the starting point will be between 5 to 8 years.  The present offence contained a total of a mixture of 14.24 grammes of cocaine.  I shall therefore use 63 months as a starting point. 

25. The defendant pleaded guilty for which he is entitled to a customary one-third discount.  Apart from that, I can see no other effective mitigation factor which warrants any further reduction.  The court can never accept the defendant to commit a crime for any economic reason.

26. For the reasons that I have given, the defendant is therefore sentenced to 42 months’ imprisonment and that is 3 years and 6 months.