HKSAR v. LEE KAM TONG

DCCC 956/2023

[2024] HKDC 1947

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 956 OF 2023

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REASONS FOR SENTENCE

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The defendant faces a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Resisting a police officer in the execution of his duty" (Charge 2). The dangerous drug involved is cocaine.

2.  He pleaded guilty to Charge 1.  I granted the prosecution's application to leave Charge 2 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

3.  About 12:46 a.m. on 17 June 2023, PC 60903 (PW1)  and  PC 11784 (PW2)  saw the defendant near Lamppost EB2247, Wai Yan Street, Tai Po.  Upon seeing PW1, the defendant walked briskly towards the other side of a parked minibus.  He was seen bending down and dropping a black plastic bag underneath that minibus. Thereafter, he walked towards PW1 and PW2; they intercepted him.

4.  PW1 and PW2 took the defendant back to the location where the black plastic bag was dropped and asked him if it was his.  The defendant denied it.  He then pushed PW2 away, causing him to fall on the ground, and ran towards On Fu Road.  PW2 grabbed the defendnat's shirt and he struggled.  PW1 and PW2 tried to subdue the defendant but he resisted by throwing his arms and legs.  PW1 eventually handcuffed him.  PW2 sustained abrasions on his right elbow and right knee.

5.  PW1 and PW2 took the defendant back to the black plastic bag again.  In the defendant's presence, PW2 picked up the black plastic bag and opened it.  A transparent plastic bag which contained 23.5 grammes of a solid containing 21.6 grammes of cocaine was found inside.

6.  CCTV footage captured the defendant running from the back of a minibus towards its front and reaching his hand underneath the minibus before being intercepted by PW1 and PW2.  The footage also captured the scuffle between the defendant and PW2.

7.  The defendant now admits that he possessed the cocaine found in this case for the purpose of unlawful trafficking.

Mitigation & Sentence

8.  The defendant is 25 and has a clear record.  Defence counsel Mr. Li informed me that the defendant has a son (aged 3)  with his girlfriend.  In mitigation, Mr. Li submitted that the defendant committed the present offence due to financial pressure, hoping meet the expenditures for his son (aged 1.5 then).  Mr. Li explained that the defendant's role was merely a deliverer in return for $500, which he did not receive.  Mr. Li stressed that the defendant has learned a bitter lesson and has made good use of his time whilst being remanded in jail custody.  He has completed several courses on religion and Franchise Management.  A bundle of mitigation letters was placed before me.  I note that the defendant's girlfriend has left him out of disappointment and their son is now looked after by the defendant's mother.  Comments made by the defendant's former employer are also favourable.

9.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  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 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

11.  In Charge 1, the defendant trafficked in 21.6 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 10 months.  For ease of calculation, I adopt 5 years and 9 months as the starting point.  With the timely guilty plea, the sentence is reduced to 46 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  Also, Mr. Li has confirmed that there is no claim for self-consumption as mitigation.  I sentence the defendant to 46 months' imprisonment for this charge.