HKSAR v. LAI KA KIT

DCCC 482/2019

[2020] HKDC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 482 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his guilty plea of the 1^st charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  Upon the prosecution’s application, the 2^nd charge of resisting a police officer in the due execution of his duty is left on court’s file and not be proceeded with unless with leave of the court.  The dangerous drug involved in the 1^st charge was 3.25 grammes of cocaine.

Facts

2.  At around 00:03 am on 24 March 2019, PC4717 (“PW1”) and his team members were conducting an anti-crime patrol in a police vehicle (“the Police Vehicle”) near the open-space car park at San Sau Street, Tuen Mun, New Territories.  The aforesaid area was sufficiently illuminated.  A private vehicle with registration no. KN831 (“the Private Vehicle”) was then parked near lamppost No. H4255 at San Sau Street with its engine and headlight turned off.  Four men were on board the Private Vehicle.  PW1 noticed that the man in the driver’s seat of the Private Vehicle (“the defendant”) became nervous when he saw the approach of the Police Vehicle.  PW1 parked the Police Vehicle next to the Private Vehicle and the four men on board were intercepted for enquiry.

3.  The defendant claimed that he was the registered owner of the Private Vehicle.  PW1 conducted a search of the Private Vehicle in the presence of the defendant.  Inside the glove compartment of the front passenger seat, PW1 found one transparent plastic bag containing 25 smaller plastic bags containing white powder (“Exhibit 1”).  At 00:15 am on the same day, PW1 arrested the defendant for the offence of “Possession of a Dangerous Drug”.

4.  At around 00:21 am on the same day when the defendant was cautioned for the offence of possession of a dangerous drug, the defendant claimed the “Coke” was for his consumption.  

5.  At around 05:21 am on 24 March 2019 in Tuen Mum Police Station, a body search was performed on the defendant by PW1 and the following items were found:-

(a) cash of $15,740 HKD;

(b) cash of ¥1,165 Renminbi; and

(c) one mobile phone.

6.  At around 07:05 am on 24 March 2019, a house search was conducted at the defendant’s abode at Tin Lok House, Tin King Estate, Tuen Mun with nil result.

7.  Drug and alcohol impairment tests of the defendant were conducted with negative results.

8.  Exhibit 1 was sent to the Government Laboratory for examination.  It was confirmed by the Government Chemist the following:-

Exhibits	Description
Exhibit 1	1 plastic bag and 25 plastic bags containing a total of 5.14 grammes of a solid containing 3.25 grammes of cocaine.

9.  The prevailing street value of the dangerous drugs seized was HK$4,805.90.

10.  Urine test of the defendant shows positive result for cocaine.

11.  It was confirmed that the defendant was the registered owner of the Private Vehicle.

The defendant’s background and previous record

12.  The defendant was born in February 1988 and is now 32 years old.  He received education up to Form 3 level.  He is single.  Prior to his arrest, he used to live with his parents and younger brother in an apartment in Tin King Estate, Tuen Mun.

13.  He has three previous convictions, out of which there are two convictions of theft sentenced in 2007 and 2016 respectively, and one conviction of wounding or inflicting grievous bodily harm sentenced in 2010 for 12 months’ imprisonment.

Mitigation

14.  Ms Hui on behalf of the defendant relied on her written mitigation dated 18 February 2020.

15.  Amongst other matters, Ms Hui submitted that the defendant is a drug addict having started taking cocaine 3 years ago.  It was submitted in her written mitigation that “most of the seized drugs were for (the defendant’s) own personal use”.  At the hearing today, Ms Hui submitted that only some of the cocaine, not “most of the seized drugs”, was for the defendant’s own consumption.  Ms Hui referred this court to R v Lau Tak Ming [1990] 2 HKLR 370, HKSAR v Cheung Wai Hin [2019] HKDC 739, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  The defendant’s urine test report dated 20 May 2019 and the defendant’s mitigation letter dated 5 February 2020 were also submitted to this court.  The aforesaid urine test report stated that cocaine was present in the urine sample collected from the defendant on 27 March 2019.  Ms Hui confirmed that the defendant chose not to hold a Newton Inquiry for the submission of self-consumption.

Sentence

16.  I follow the sentencing guidelines laid down in Lau Tak Ming and Attorney General v Rojas [1994] 1 HKC 342.  As the 1^st charge involves 3.25 g of cocaine, I adopt a starting point of 36 months’ imprisonment[1].

17.  Regarding the submission of self-consumption, the defendant chose not to hold a Newton Inquiry.  In this connection, it is noted that the defendant was intercepted at midnight in his Private Vehicle parked at San Sau Street which was not close to his residence at Tin Lok House, Tin King Estate which is on the other side of Tuen Mun River.  There were 3 other men in the Private Vehicle.  The cocaine involved in the present case was packed in 25 small plastic bags.  The defendant was found to have cash in the sum of HKD15,740 and RMB1,165.  As it was submitted in mitigation that the defendant used to earn about HKD23,000 per month[2] and he was the sole breadwinner of the family and paid “all the family maintenance and additionally paid his parents HK$10,000 per month and his younger brother whenever he needed it”, the defendant’s possession of HKD15,740 and RMB1,165 with him at the material time was highly unusual for a person of his income and expenditure.  Despite the positive result of cocaine stated in the urine test report and the defendant’s response under caution at 00:21 am on 24 March 2019 that the “coke” was for his consumption, without holding a Newton Inquiry I am not satisfied that a significant proportion of the cocaine was for the defendant’s own consumption.  Nonetheless, I am of the view that some, but not a signification proportion, of the cocaine was for the defendant’s own consumption.  I bear in mind the Court of Appeal’s decision in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.  Indeed, it was submitted by Ms Hui that only some of the cocaine was for the defendant’s consumption.  Taking into account that possession carries a sentence in any event and the latent risk factor, I will reduce the sentence for the 1^st charge by 2.25 months to 33.75 months’ imprisonment.  

18.  I give 1/3 discount to the defendant for his timely indication of guilty plea. There being no further valid mitigating factor justifying further reduction in sentence, the defendant is sentenced to 22 months and 2 weeks’ imprisonment for the 1^st charge.