HKSAR v. LAI HAIXIAN

DCCC 787/2024

[2025] HKDC 54

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 787 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of possession of dangerous drugs, namely 4.95 grammes of a solid containing 3.99 grammes of cocaine.

2.  At about midnight, on 24 March 2024, the Police saw the Defendant wondering around Ching Yuk House, Tsz Ching Estate, Wong Tai Sin.

3.  When the Police approached him, he lowered his head and quickly walked away.

4.  When he was stopped and asked what he was doing, the Defendant said that he was looking for his friend, but was unable to provide further information of his friend.

5.  During a body search, the following items were found from the right front pocket of his trouser:-

(a)  One plastic bag containing 3 stapled plastic bags containing 0.73 gramme of cocaine.

(b)  One plastic bag containing 14 stapled plastic bags containing a narcotic contain of 3.26 grammes of cocaine.

(c)  Cash of HK$9,859.

6.  He had 2 mobiles phones with him.

7.  The total street value of the drugs seized was about HK$4,500.

8.  Under caution, the Defendant said that the “coke was for his own consumption.”

Mitigation

9.  The Defendant is now aged 23 with a clear record.  Before the arrest, he lived with his parents and sister in Sheung Shui.  He was unemployed at that time, but was supported by his family.  Financially, his mother works in the restaurant and father is a delivery worker.  The total family income is about HK$50,000.  

10.  The Defence also cited the following cases for reference:-

(i)  HKSAR v Wan Sheung Sum, [2000] 1 HKLRD 405

(ii)  HKSAR v Lee Chun Man [2015] 4 HKC 310

(iii)  香港特別行政區 訴陳永忠(CACC 248/2009, 04/12/2009)

11.  As to the District Court decisions cited by the Defence, the Court of Appeal has already mentioned in HKSAR v 梁景祥CACC 129/2022 (judgement on 27/12/2023)  that that it is inappropriate to quote the district court decisions for the resons that“未經上訴肯定的判刑理由……並不一定正確”.

Sentence

12.  Since the Defendant faced a single charge of possession of dangerous drugs, I am obliged to call for a DATC report[1] even though the Defendant has been in remanded for some 9 months.

13.  The DATC report provided the following information:-

(i)  February 2023:-   the Defendant started to abuse   cocaine on top of cannabis;

(ii)  September 2023:-    his last occasion of taking drugs;

(iii)  26.3.2024:-   the Defendant’s urine test was found negative for dangerous   drugs.

14.  According to the case of Wan Sheung Sum that when sentencing the Defendant, there is a 3 steps approach.

15.  The usual sentencing range is between 12 to 18 months for a bona fide user.  In the present case, the quantity of the seized cocaine is 3.99 grammes, I take 12 months as the starting point.

16.  As said in HKSAR v Lee Chun Man (2015)  4 HKC 310

“that the latest risk would be determined from all the circumstances in any particular case, including the quantity of drugs possessed and the personal circumstances of the offender.”

“The amount of the enhancement of the initial starting point would depend on the degree of the latent risk.  The higher the risk the greater the amount of enhancement.  Thus, the degree of risk should be assessed as it would guide the judge in his determination of the amount of enhancement.  The range was from six months for a low degree of risk to 18 months or more for a very high degree of risk (para 19).”

17.  I now come to determine the latent risk factors:-

(a)  The Defendant claimed under caution that the drugs were for his own consumption, but the urine test after the arrest indicated negative results from all drugs.

(b)  The Defendant told the assessment officer in DATC that he started to take cocaine in 2/2023, his last taking of drugs was in 9/2023.  That means at the time of the arrest, he had stopped taken drugs for some 6 months.  From all the evidence before me, there is no obvious reason for the defendant to take drugs again.  The assessment in DATC was that he is not a drug dependent.

(c)  The Defendant was unemployed at the material time, but he had cash of about HK$9,859 with different denomination in his trouser pocket.  While the street value of the drug was about HK$4,500.  The family claimed that they provided the money to the Defendant.

(d)  Today, I was informed that the total family income was about HK$50,000/month and they provided about HK$14,300 (HK$9859 + HK$4500)  to the Defendant?  Which was about 30% of the total income of the family.  It simply is not convincing.  Today, I have been informed that the Defence will not call evidence to support such a claim.

(e)  When the Defendant was stopped by the Police, it was mid-night, what was he doing there?  He said he was looking for his friend, but he could not provide detail of his friend.

(f)  The Defendant lived in Sheung Shui, when he was stopped in Wong Tai Sin, he was wandering around.

(g)  The packing of the drugs were in individual bags[2] (altogether 17 smaller begs)  which means they are ready for re-distribution.

(h)  The Defendant has a clear record.

(i)  Urine test report is clear of all drugs.

18.  With all these information in mind, it is clear to me that the latent risk factors are high, the risk of dissemination is real.  I enhance the sentence by 18 months to reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the defendant.

19.  As such, the total sentence arrives at 30 (12 + 18), given ¹/₃ discount, it comes down to 20 months’ imprisonment.

20.  The Defendant is ordered to serve a period of 20 months’ imprisonment.