HKSAR v. SO LOK LAM

DCCC 808/2019

[2020] HKDC 388

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 808 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 20.62 grammes of a solid containing 18.71 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 1941 hours on 14 August last year the defendant was intercepted at the Customs Departure Hall of the Hong Kong Macau Ferry Terminal.  The defendant was led to Room M266 where he was searched. 

3.  Inside the right pocket of the defendant’s shorts CO 15157 found one piece of white coloured tissue inside which was a total of one hundred and thirty transparent re-sealable bags containing the cocaine. 

4.  Under caution the defendant admitted he was helping someone take the drugs to Macau in return for a reward of $5,000.

5.  The defendant was also found in possession of one mobile phone; one Octopus card, $810 and a ferry ticket to Macau.   

6.  The estimated street value of the cocaine was around $21,671.62.

Mitigation

7.  In passing sentence, I have carefully considered the written and oral submissions of Mr Fong including that the defendant has attention deficit/hyperactivity disorder (ADHD) and dyslexia[2].

8.  I have read the mitigation letter written by Ms Wong, the defendant’s social worker who describes the defendant as a caring, responsible and energetic teenager who has actively undertaken voluntary work, including helping residents in the Ying Tung Estate, Tung Chung. 

9.  I take into account the defendant has no previous convictions for dangerous drug offences. 

10.  I take into account that the defendant is only 18, 17 at the time of the offence and that his parents are in court today showing their support.

11.  Section 109A of the Criminal Procedure Ordinance[3], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  

12.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

13.  In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[4].     

14.  I have not been asked to call for any reports.  After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate.  Notwithstanding the defendant’s young age, I am satisfied there are no exceptional circumstances warranting departure from the guidelines.

Guidelines

15.  The courts have equated for sentencing purposes cocaine with heroin[5].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[6].  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

16.  On a purely arithmetical approach a starting point of just less than 5 years and 8 months’ imprisonment would be appropriate for trafficking in 18.71 grammes of cocaine. 

17.  Taking into account the defendant’s young age and that he has no previous convictions for dangerous drug offences, I adopt a slightly lower starting point of 5 years and 6 months’ imprisonment. 

International element

18.  The exportation of cocaine adds an international element to the offence and is an aggravating feature of sentence. 

19.  In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[7].

20.  In HKSAR v Choi Chun Wo, the Court of Appeal stated:[8],

“However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent”.

21.  The court in HKSAR v Choi Chun Wo held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

22.  I am satisfied for exporting 18.71 grammes of cocaine to Macau the starting point should also be enhanced by 3 months to 5 years and 9 months’ imprisonment.

23.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 10 months’ imprisonment. 

Voluntary work

24.  Taking into account the defendant’s active participation in voluntary work as described by Ms Wong, I further reduce the sentence by 2 months to 3 years and 8 months’ imprisonment.

25.  The defendant is convicted and sentenced to 3 years and 8 months’ imprisonment.