HKSAR v. CHAN LOK HIM

DCCC 226/2022

[2022] HKDC 1123

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 226 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to Summary of Facts.

Facts

2.  At around 0250 hours on 26 August 2021, police intercepted the defendant near lamppost N6637 on Kwong Fuk Road.  Upon search, the following were found tucked at the waistband of the defendant’s underpants:-

(a)  1 transparent packet containing 10 plastic bags containing a total of 4.4 grammes of a solid containing 3.71 grammes of cocaine;

(b)  1 transparent packet containing 10 plastic bags containing 4.43 grammes of a solid containing 3.7 grammes of cocaine; and

(c)  1 transparent packet containing 1 plastic bag containing 0.43 gramme of a solid containing 0.38 gramme of cocaine.

3.  Total dangerous drug seized was 9.26 grammes of a solid containing 7.79 grammes of cocaine. 

4.  Upon arrest at scene, under caution, the defendant said that “Ah Sir, the coke was for my own consumption.  Give me a chance”.  The cautioned statement was post-recorded on a police notebook, which was acknowledged by the defendant by signing. 

5.  In a subsequent video-recorded interview conducted with the defendant, he admitted, inter alia, under caution that the ‘coke’ meant cocaine and he paid HK$7,000 for the cocaine seized on him. 

6.  The street value of all dangerous drugs seized was HK$8,943.  The defendant admits and accepts that at all material times he was trafficking in the dangerous drugs seized on him. 

Criminal Record

7.  The defendant has a clear record. 

Mitigation

8.  The defendant is aged 21.  He is single.  He was educated in Hong Kong up to Form 2.  At the time of arrest, he lived with his father. He came from a broken family.  Parents divorced when he was aged 15 but he kept contact with his mother. 

9.  The defendant had worked in a bar up to 2021, earning about $15,000 per month.  It was said his maternal grandmother suffered from stroke and mental problem and had been in hospital for 2 years.  It was said that due to the pandemic and social instability, his salary was reduced to about $10,000 per month.  The defendant said as he was in financial difficulties, in order to earn quick money, he committed the offence. 

10.  Defence counsel conceded that applying the sentencing guideline laid down by the Court of Appeal, the appropriate sentencing starting point for trafficking in 7.79 grammes of cocaine is 52 months’ imprisonment. 

11.  Defence counsel submitted that the defendant pleaded guilty to the charge and is therefore entitled to full one-third sentencing discount. 

12.  He also produced to this court mitigation letters from the defendant and his mother.  It was said that the defendant committed the offence out of character, he used to be a loving and caring son, and that he had grown up in a broken family, his parents had failed to keep an eye on him, and that he has been susceptible to undesirable peers’ influence.  As for the defendant, he says he is deeply remorseful as to what he has done, he feels guilty towards his family and he promises not to reoffend in the future and to start afresh. 

13.  Defence counsel also submitted that the defendant himself is a cocaine user and a small part of the dangerous drugs is for the defendant’s own consumption. 

Discussion

14.  Before sentencing, this court has clearly considered mitigation by defence counsel, including the mitigation letters from the defendant and his mother. 

15.  The maximum sentence on conviction upon indictment for this offence is a fine of $5 million and imprisonment for life. 

16.  As conceded by defence counsel, for trafficking in 7.79 grammes of cocaine, following the guideline, the appropriate sentencing starting point is 4 years and 4 months’ imprisonment. 

17.  Trafficking in a dangerous drug is a very serious offence and personal background of the defendant is seldom a valid mitigating factor.  It was said the defendant committed the offence for fast money.  That is definitely not a valid mitigating factor. 

18.  The most valid mitigating factor in this case is the defendant’s guilty plea for which he is entitled to full one-third sentencing discount.  His sentence is therefore reduced to 34 months and 18 days’ imprisonment. 

19.  Urine test performed on the defendant found traces of cocaine in his urine sample and therefore supports defendant’s contention that he is a cocaine user.  This also supports that at least a small part of the drugs seized on him was for his own consumption.  For this reason, the court is willing to further discount the sentence by 2 months and 18 days’ imprisonment. 

20.  Defendant is therefore sentenced to 32 months’ imprisonment for the offence.