HKSAR v. LAI PUI HUNG, FIRE

DCCC 522/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 522 OF 2017

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REASONS FOR SENTENCE

      The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.  About 2:30 a.m. on 23 February 2017, near the junction of Po Yick Street and Po Yick Lane in Tai Po, police officers saw the defendant sitting in the driver's seat of a stationary vehicle KL1062 ("the Vehicle") with its engine running.  He was using his mobile phone and a calculator.  The officers stopped the defendant for enquiry.

3.  Upon search, it was found in the storage compartment of the Vehicle (1) a plastic bag containing 11 resealable plastic bags which contained a total of 2.33 grammes of a solid containing 2.06 grammes of cocaine; and (ii) a tin candy box containing 28 resealable plastic bags which contained a total of 5.34 grammes of a solid containing 4.66 grammes of cocaine (collectively "the Drugs").

4.  Under caution, the defendant admitted that he was delivering the Drugs to another for a reward of $3,000.

5.  The defendant's home situated at a village house on Ting Kok Road (which was about 15 minutes by car from the crime scene) was searched.  Nothing suspicious was found.

6.  In his video recorded interview, the defendant gave a different version from his verbal admission.  He claimed that he borrowed the Vehicle from someone named Fat Tung on 18 January 2017.  The defendant knew that the Drugs were present in the Vehicle.  Fat Tung told him that he could consume the Drugs.  He claimed that one of the 2 phones found on him was given to him by Fat Tung, who said he would call the defendant if it was necessary for the defendant to deliver the Drugs to others.

Mitigation & Sentence

7.  The defendant is 29 and single.  He has 1 conviction record dated June 2008, which was related to a "simple possession" offence.  He was fined $1,000.  Defence solicitor Mr. KONG informed me that defendant is unemployed and resides with his mother.  The defendant's father passed away a few months ago.

8.  In mitigation, Mr. KONG submitted that at the time of the offence, the defendant's girlfriend was pregnant.  He therefore wanted to earn some quick money.

9.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  Having a pregnant girlfriend is not an excuse to resort to drug trafficking.

10.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.

11.  As a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons used by others as "couriers".  When people realize that the court would not treat drug traffickers lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit people with financial needs or other vulnerabilities. Undoubtedly, most drug traffickers are "used" by bad persons (or so they claim).  That is the reason why we need to make people think twice before they agree to be "used".

12.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  In the present case, the defendant trafficked in 6.72 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 4 years' imprisonment.

13.  I see no reason to adjust the starting point upward or downward.  I adopt 4 years' imprisonment as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 32 months' imprisonment.