HKSAR v. LAM WING CHAU

DCCC 692/2020

[2021] HKDC 639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 692 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug, namely, 9 grammes’ narcotic content of cocaine.

2.  The facts are very simple.  On 26 April 2020, police officers conducted a stop-and-search operation at the defendant in Cheung Sha Wan at the Fortune Estate in Kowloon.  On search, from the defendant’s right trouser pocket was found a plastic box containing drugs and a transparent resealable plastic bag containing 20 packets of suspected drugs.

3.  The analysis showed that the plastic box contained a total of 5.77 grammes of cocaine whereas the 20 plastic bags contained a total of 3.23 grammes of cocaine. 

4.  The defendant at the time of his arrest only had $38 in cash on him.  Total price that is estimated of these drugs is $9,081.

5.  The defendant is now aged 35, educated to Form 2 level, was unemployed according to his antecedent statement and apparently makes a claim to be addicted to drugs.

6.  The defendant has some previous convictions dating back to 2001 relating to assault and copyright offences.  Of relevance is in 2014 he was convicted of possession of a dangerous drug and was fined on that occasion.

7.  The defendant’s urine test report on admission to Lai Chi Kok Detention Centre shows that there was a positive response to cocaine.  That combined with the defendant’s previous conviction would appear to provide a strong argument that the defendant is a consumer of that drug. 

8.  As far as the defendant’s mitigation is concerned, he pleads in aid his timely plea of guilty.  He had been a transportation worker who had been laid off due to the COVID pandemic.  He has a conviction record dating back to when he was 15 years old.  He has been put under care probation orders, been to a training centre and detention centre. In 2014, he was convicted of dangerous drugs.  That related to the drug ketamine when he received a fine, but he has received physical damage to himself as a result of his ketamine addiction causing bladder problems.  The defendant then, I am told, switched to cocaine because he thought it would be less damaging to him, and that is supported of course by the fact that he was tested positive for cocaine only and negative to other specified drugs on the SA test on admission to custody.

9.  The defendant further submits in mitigation that he would consume part of the drug himself, and he says in mitigation that he would consume the plastic bag.  The drug in the defendant’s plastic bag was a total of 20 packets containing 3.23 grammes of cocaine, some 36 per cent of the total, and he would consume one to two bags a day, lasting him for 10 to 20 days.  The rest of the drugs would be used for deriving an income from which he could feed his addiction.

10.  Defendant is remorseful.  He pleads guilty.  He asks the court to include a discretionary discount for the fact that part of the drug consumption would be for his own self-consumption.

11.  As far as the approach to sentencing is concerned, the case of trafficking in cocaine is covered by general guidelines.  The guideline sentence for cocaine is same as that for heroin. The case that determines that is R v Lau Tak Ming [1990] 2 HKLR 370.  The 9 grammes’ total of cocaine here which puts it in the range of up to 10 grammes which is a sentence of between 2 to 5 years’ imprisonment. A mathematical calculation would put the starting point for sentence somewhere in the region of 4 years 8 months’ imprisonment which should be a total of 56 months’ imprisonment.

12.  Taking into account the fact that the defendant has pleaded guilty, he does have a previous conviction of possession of drugs, I should take a starting point for sentence in this case of 57 months’ imprisonment.  I shall take into account the defendant’s consumption of at least part of these drugs.  The proportion is not a significant proportion but is sufficient for me to take it into account for a discretionary reduction.  I will make a further discretionary reduction from that starting point for sentence of 6 months’ imprisonment, leading to a starting point of 51 months’ imprisonment.  The defendant is then entitled to a one-third discount from that which leads to a final sentence of 34 months’ imprisonment.