HKSAR v. LAU TAK MAN

DCCC 550/2022

[2023] HKDC 873

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 550 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of 2 charges 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 amended Summary of Facts.

Facts

2.  At about 8:05 pm, PC24813 (“PW1”) intercepted the defendant outside No 322 Wing Ning Tsuen. Inside the left pocket of the defendant’s jacket, he found:-

(1) a cigarette packet containing 5 cigarettes, which contained a total of 0.34 grammes of a solid containing 0.26 grammes of cocaine;

(2) a cigarette containing 0.07 grammes of a solid containing cocaine; and

(3) a transparent resealable plastic bag containing 15 transparent resealable plastic bags, which contained a total of 2.59 grammes of a solid containing 2.21 grammes of cocaine.

3.  PW1 arrested the defendant for trafficking in dangerous drugs and gave him a caution.

4.  Later, police searched the defendant’s residence located at 1^st Floor, No 322 Wing Ning Tsuen. In the under bed storage drawer in the defendant’s bedroom, the following were found:-

(1) A transparent resealable plastic bag containing 8.56 grammes of a solid containing 6.95 grammes of cocaine;

(2) an electronic scale; and

(3) a transparent resealable plastic bag containing 30 transparent resealable plastic bags.

5.  At the material times, the defendant was carrying cash of HK$1,250. On the same day, the defendant said under caution that these solids seized by the police are crack cocaine.

6.  The average retail price for crack cocaine was HK$1,598 per gramme in February 2022. The estimated street value of the cocaine seized was around HK$18,473.

7.  At the material time, the defendant possessed the cocaine seized for the purpose of unlawful trafficking.

Criminal Record

8.  The defendant has 3 previous criminal records involving convictions of 5 charges, one of which is a conviction of possession of dangerous drugs for which he was sentenced to 8 months’ imprisonment suspended for 3 years on 29 July 2021.

Mitigation

9.  The defendant is aged 31. He is single. He received education up to Form 5 and he lived separate from his mother.

10.  It was said that the defendant became a drug addict since he was young and he had a habit of taking cocaine. According to defence counsel, the defendant used to work as a chef earning about $18,000 per month. Due to economic downturn and social disturbance, the defendant lost his job since December 2021 and he relied on savings to maintain his living.

11.  The defendant’s counsel acknowledged that the sentencing starting point for trafficking in cocaine will follow the guideline in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 and R v Lau Tak Ming [1990] 2 HKLR 370. Defence counsel also conceded that the defendant has breached the condition of suspended sentence imposed on him.

12.  It is said that the defendant at the time of the offence was a cocaine abuser and defence counsel in support of this contention submits to the court the urine test report dated 9 June 2022.

13.  It is submitted that the defendant pleaded guilty at the first opportunity and that the total amount of cocaine involved in this case is 9.42 grammes.

14.  The defence counsel submitted that the defendant committed the present offence in the hope of getting quick money and that he now deeply regrets what he has done and has learned a harsh lesson. In support, he handed to this court a letter of mitigation from the defendant. The defendant said in this letter that he was deeply remorseful and shameful as to what he had done. With the support of his family, girlfriend and social worker, he hopes that on his release from prison, he would reform himself and return to the right track in life.

15.  Defence counsel urged this court to give the defendant one last chance and to impose a lenient sentence on him.

Discussion

16.  Before sentencing, this court has carefully considered the mitigation done by defence counsel as well as the mitigation letter written by the defendant.

17.  Maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life.

1^st charge

18.  As conceded by defence counsel, for trafficking cocaine of 2.47 grammes following the guideline in the Pedro Nel Rojas and Lau Tak Ming case, the sentencing starting point is 32.89 months’ imprisonment.

19.  The defendant committed the present offence less than 7 months after he was put on a suspended sentence for a drug-related offence, which is suspended for 3 years. This constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced by 3 months’ imprisonment.

20.  The offence is a very serious offence and personal background is seldom a mitigating factor. The fact that the defendant committed the present offence in order to earn quick money is not a valid mitigating factor.

Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea, for which he is entitled to full one-third sentencing discount.

21.  In view of the urine test report result, the court is willing to accept that he is a cocaine user and that a small quantity of the drugs involved is for his own consumption. The sentencing discount for the defendant himself being a drug abuser is 1 month’s imprisonment.

22.  Accordingly, the sentence for the defendant under this charge is 22 months and 27 days’ imprisonment.

2^nd charge

23.  Similarly, the sentencing starting point for trafficking 6.95 grammes of cocaine is 49 months’ imprisonment. Again, the same is enhanced by 3 months by reason that he committed the offence whilst he was put on a suspended sentence for a drug offence.

24.  The defendant is afforded one-third sentencing discount by reason of his guilty plea. This court again will give him a 1-month sentencing discount by reason that he is a drug abuser himself using a small amount of drugs involved for his own consumption.

25.  The defendant is therefore sentenced to 33 months and 18 days’ imprisonment for this charge.

Totality Principle

26.  In essence, the defendant trafficked a total of 9.42 grammes of cocaine. Following the said guideline, the sentencing starting point should be 57.9 months’ imprisonment. The defendant’s sentencing starting point is enhanced by reason he committed the offence whilst he was put on a suspended sentence for a drug offence. His sentencing starting point is enhanced to 61 months’ imprisonment.

27.  The defendant is afforded one-third sentencing discount and he is sentenced to 40 months 18 days’ imprisonment. The court will afford him sentencing discount of 1 month by reason that he is a cocaine abuser. Therefore, he should be sentenced to 39 months and 18 days’ imprisonment.

28.  Accordingly, 6 months of the sentence of the 1^st charge is to run consecutive to the sentence of the 2^nd charge, the rest to run concurrently. The defendant is sentenced to a total of 39 months and 18 days’ imprisonment for the 2 offences.

Suspended Sentence

29.  Coming to the suspended sentence imposed on 29 July 2021, this court sees no reason why the same should not be activated. Accordingly, the 8-month suspended sentence is activated and the defendant shall serve the 8-month sentence consecutive to the sentence in present case. The total sentence for the defendant is therefore 47 months and 18 days’ imprisonment.