HKSAR v. LAM Chun kit

DCCC468/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.468 OF 2010

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Reasons for Sentence

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1.  The defendant faces one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 22^nd February 2010, outside nos.181-189 Woosung Street, Yaumatei, Kowloon unlawfully trafficked in a dangerous drug, namely 11.68g of a solid containing 9.43g of cocaine.

2.  The defendant pleaded guilty, admitted to the summary of facts and was duly convicted. A background report was called for prior to the defendant’s sentencing.

Summary of facts

3.  At 2:40am on 22^nd February, 2010, the defendant was spotted by a team of Police officers on anti-narcotics patrol when he alighted from a private car. Police intercepted the defendant for enquiries. The defendant was searched and a plastic bag (E1) of suspected dangerous drugs was found inside the right pocket of the jacket worn by the defendant. Under verbal caution, the defendant admitted that he was instructed to deliver the drugs for a reward of HK$1,000.

4.  In the subsequent video recorded interview, the defendant admitted that he knew the driver of the car as “Lam” and they met in an amusement game centre in Yuen Long 2 months ago. On the charge date, the defendant boarded the vehicle upon the invitation of the driver. During the journey, Lam offered $1,000 to the defendant, asking him to deliver the drugs. The defendant later put the drugs into his right jacket pocket and alighted from the car. Shortly thereafter he was intercepted and arrested by the police.

5.  Government chemist confirmed that E1 contained 11.68g of a solid containing 9.43g of cocaine.

6.  It is stated in the last paragraph of the summary of facts that at all material times, the defendant possessed the drugs found on him for the purpose of trafficking. 

Previous

7. The defendant had a clear record.

Mitigation

8.  In mitigation counsel submitted that the defendant is fully aware that he faces an excepted offence and that his age does not fall into the category of extreme youth. Furthermore, the quantity of cocaine found on him would fall into the high end of the 2 to 5 years sentencing range of the R v Lau Tak Ming [1990] 2 HKLR 370 guidelines.

9.  A written summary of mitigation was very helpfully submitted and I will not repeat the full contents of Mr. Khattak’s submissions here. It was pointed out that the defendant had never committed any serious crimes in Hong Kong, that this is only first and single criminal offence. The summary of facts shows that the defendant boarded the vehicle of a friend and he was asked to take the drugs during the ride. It was out of momentary greed that the defendant committed the present offence.

10.  The defendant was working as an air-conditioner apprentice before the offence. After the offence, he worked for a logistics company. He quit before the trial knowing that he will be sent away for a long time.

11.  Counsel submitted that the defendant had a single fall from grace. Although according to the guidelines, up to 10g is 2-5 years’ imprisonment, the character, clear record and full remorse of the defendant should cause the court to adopt a lower starting point if custodial sentence is inevitable.

12.  The defendant had been in custody for 2 months after his arrest before he was released on bail. It was submitted that he had learned a bitter and tough lesson.

Sentencing Guidelines

13.  It is not disputed that the sentencing guidelines in the case of R v Lau Tak Ming [1990] 2 HKLR 370 apply in our present case for trafficking in cocaine. The amount of cocaine involved is 9.43g. A strict application of the relevant guidelines of between 2 to 5 years’ imprisonment would lead to a starting point of 57 months’ imprisonment.

Sentence

14.  Counsel for the defendant urges this court to adopt the lowest end of the guidelines band based on the grounds of his clear record, his momentary lapse of judgment to agree to deliver the drugs for a small reward and his full cooperation with the Police since arrest.

15.  While it may be true that the defendant had committed the offence out of momentary greed, according to the background report of the defendant, he is someone who had been working in different jobs for some time and therefore been exposed to the various elements of society. It cannot be argued that the defendant would not know the serious consequences of drug trafficking, even if he was a simple minded person.

16.  Therefore despite Mr. Khattak’s very persuasive mitigation on behalf of the defendant, I find that the offence that the defendant had pleaded guilty to is so serious that there is no room to depart from the sentencing guidelines set down in Lau Tak Ming.

17.  I will adopt a starting point of 57 month’s imprisonment, reducing it by 6 months in view of the defendant’s previously good character and his full cooperation with the police since his arrest, and then granting him the full one third discount for his guilty plea, and sentence the defendant to 34 months’ imprisonment.