HKSAR v. LAI KIN WAI

DCCC 9/2019

[2019] HKDC 1261

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 9 OF 2019

-----------------------------------------

-----------------------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  In these proceedings, the defendant, Mr Lai Kin Wai, faced two counts of dangerous drugs-related offences, namely:-

(1) Possession of Dangerous Drugs involving in total 2.52 grammes ketamine, 4.74 grammes of cocaine, and 1.33 grammes of “Ice”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong;

(2) Possession of Apparatuses Fit and Intended for Inhalation of Drugs, contrary to section 36(1) and (2) of the said ordinance.

2.  He pleaded guilty to the charges and admitted the facts of the case.  He was convicted as charged.

Facts

3.  At about 10 am on 21 October 2018 the defendant’s vehicle was found to be in breach of parking regulations.  At the time the defendant was sitting on the driver’s seat.  Upon enquiry, the police found the three lots of dangerous drugs in the bag placed next to the defendant.  In addition, on the storage cabin on the left front door, the police also found two sets of apparatus fit for inhaling respectively cocaine and methamphetamine.

Sentencing Considerations Latent Risks

4.  Unlike trafficking in dangerous drugs, for possession charges there is no sentencing guideline with mathematical certainty.  The defence submitted, that the usual tariff is 12 to 18 months.  This was not disputed by the prosecutor.  However, this guideline will be adjusted if the court is satisfied that there is no latent risk.  As has been submitted by the defence counsel, the latent risk factor is a relevant point for the court to add from the usual starting point. 

5.  In determining whether there is a latent risk, the court ought to take into account whether the defendant has the financial means of taking the dangerous drugs, whether the drugs were kept in a place where others have access, and whether the defendant had previous convictions relating to trafficking in dangerous drugs.  In the present case, there are three kinds of dangerous drugs.  I consider this would justify a starting point of 15 months’ imprisonment.  As for the second count of apparatus, they are tied to the 1^st charge.  I therefore adopt a starting point of 9 months.

6.  I turn to consider the other evidence in this case. 

7.  According to the prosecution’s estimate, the three kinds of dangerous drugs cost about $7,920 if purchased in the market. 

8.  Under caution, the defendant admitted possession for self-consumption and the two sets of apparatus were used to inhale “Ice” and cocaine respectively.

9.  According to the antecedent statement, the defendant was a drainage worker.  He made about $20,000 per month.  He was born in 1980, aged 39 at the time of the conviction.  It is not the first time he is convicted of drug-related offences.  He had 11 previous convictions.  Five of them were drug related, of which two, convicted respectively in 2008 and 2015, were trafficking in dangerous drugs.  Therefore, from his previous record, the court could infer that he could be a trafficker. 

10.  According to the DATC report, the defendant, having been to DATC at least three times, is not a suitable candidate.  In any event, since he had been remanded for over 9 months, physically he is clear of any addiction to dangerous drugs.  The probation officer’s report was consistent with the antecedent statement in that the defendant’s income exceeded $20,000 per month. 

11.  Read as a whole, although there is some evidence for this court to infer that he could be trafficking in dangerous drugs, the risks seem to be quite small; since he had at the time the financial means to satisfy his addiction, and that the drug involved, though consisted of three kinds, were in relatively small quantity, the total market value of which was within his financial means.  The two previous convictions related to trafficking were also some time ago. 

12.  The defendant also admitted to the probation officer that he had been a polysubstance abuser.  Therefore, the existence of three kinds of dangerous drugs alone would not be sufficient for the court to infer to the required degree that he would possibly traffic the drugs in his possession. 

13.  Furthermore, since the drugs were found in his bag placed inside his car, again there is no evidence to suggest that he was trafficking at the time.

14.  Having considered the evidence as a whole, I am satisfied that there is no justification to increase the sentence beyond what is generally accepted.  Therefore, in this case, I would adopt the starting point as pointed out earlier.

Mitigation

15.  I turn to consider the other mitigating factors.  The defendant had multiple previous convictions.  He is a mature man aged 39 and there is nothing in his background which would justify any exercise of exceptional clemency. 

16.  In my view the only valid mitigating factor is his guilty plea.  In accordance with the directions of the Court of Appeal decisions, his sentence for Charge 1 will be reduced to 10 months, the sentence for the 2nd charge will be reduced to 6 months. 

17.  Since the offences are inextricably linked, I consider it fair that both sentence order should run concurrently. 

18.  Therefore, in all, the defendant for the two offences is to serve a total term of imprisonment for 10 months.