HKSAR v. LEE TIK CHING

DCCC7/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 7 OF 2012

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Reasons for Sentence

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1. The defendant is convicted upon his guilty plea of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. In sentencing, I have taken into account the whole circumstances of the case, including the nature and facts, in particular, the nature and quantity of the dangerous drugs involved, background of the defendant, as well as the mitigation put forward on his behalf.

3. The case against the defendant is simple and here I shall largely adopt the amended summary of facts which was agreed by the defendant.

4. In essence, the defendant was seen walking with a male known as Cheung Man-choi by a team of police officers during an anti-narcotics operation in the vicinity of a public housing estate in Tsing Yi, New Territories at about 2100 hours on 4 July 2011.

5. The police later followed the pair to the 18th floor of a building and then they waited in the staircase for about two hours.

6. At about 2258 hours, the police saw the defendant and the male Cheung exiting from Room 1812.  The defendant held a rubbish bag and walked along the corridor while the male Cheung took the lift and went down to the ground floor.

7. The defendant was immediately intercepted by the police and upon a search of the rubbish bag that he held, there were altogether six plastic bags containing white powders.

8. The defendant was arrested and cautioned.  Under caution, the defendant admitted that:

(1) he resided at the premises and there was cocaine in the premises and the cocaine belonged to him and it was not related to his family;

(2) the defendant kept the cocaine for Cheung as storage.

9. Later, the police officers entered the premises and searched the premises.  They found a travelling bag (P1) in the bedroom of the defendant.

10. P1 contained a plastic bag (P2) which contained the following exhibits:

(1) 20 plastic bags containing suspected dangerous drugs (P3);

(2) one electronic scale and one battery (P4);

(3) one plastic bag containing 58 empty plastic bags (P5); and

(4) one plastic sheath containing one metal pick (P6).

11. The defendant was further arrested and cautioned.

12. Under further caution, the defendant admitted that he kept the cocaine for Cheung as storage and was rewarded by Cheung with free cocaine consumption.  Cheung would later retrieve the cocaine from the defendant.

13. In the subsequent video interviews, the defendant confirmed what he earlier said to the police.

14. The government chemist certificate confirmed that:

(1) first, the six bags of powder did not contain any substance controlled under the Dangerous Drugs Ordinance;

(2) second, P3 contained a total of 5.54 grammes of a solid containing 5.20 grammes of cocaine.

15. The street value of P3 was estimated by the police to be about $5,889.

16. Clearly, the defendant possessed P1 to P6 for the purpose of trafficking.

17. The defendant is now 22 years of age.  He has one previous criminal record of assaulting occasioning actual bodily harm in 2006 for which he received a probation order for 12 months.  That is, of course, a spent conviction and for all intent and purposes I shall treat him as a person of clear record in this case.

18. He left school after completing Form 4 and started working, firstly, as a casual worker, and later as a transportation worker for nearly two years before he was arrested for the present offence.

19. He is single and is the youngest son of the family.  His father is an air-conditioning worker and his mother is a street hawker.  They are both in their 50s.  The defendant also has two elder sisters.

20. The court was further told that the defendant was very remorseful after he was arrested and he promised not to commit this offence again.  In support, a clinical laboratory report dated 17 April 2012 is submitted which shows that there is a negative finding both in terms of cocaine and ketamine.

21. A letter of mitigation, which was written by the defendant’s former employer of the transportation company was also submitted to the court by the defence counsel for consideration.  The letter speaks of the defendant as a responsible and diligent worker and urges the court to pass a lenient sentence to the defendant.

22. Defence counsel also explained to me that the defendant went astray only because of his association of this undesirable peer, Cheung, and he was lured into the habit of taking cocaine exactly by this undesirable peer.

23. He started consuming cocaine since 21 years old and, according to the antecedent statement, he needed to consume cocaine three times per week.

24. Trafficking is of course a very serious offence. Anyone who was involved in the business of trafficking dangerous drugs would expect to be dealt with severely by the court once caught.

25. As far as the sentencing guideline for cocaine is concerned, the Court of Appeal had already decided in the case of Attorney-General v Rojas [1994] 2 HKCLR 69 that the sentencing guidelines for heroin are applicable to cocaine.

26. According to the sentencing guideline in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370, up to 10 grammes of the narcotics, the sentence is said to be 2 to 5 years’ imprisonment.

27. Having considered the whole circumstances of the present case, I see no reason to depart from this guideline.  

28. Of course, I have sympathy for the mother of the defendant who has also turned up with the two sisters of the defendant in court today to support her son.

29. However, the Court of Appeal had repeatedly stressed that family circumstances is something which the court cannot consider in dealing with sentence of serious offence.

30. The defendant is, of course, still young but he is not extremely young.  He is now already over 21 and therefore the only realistic sentencing option is one of immediate custodial sentence.

31. Although I accept that the reason why he committed the present offence was that he was subjected to the undue influence of this male Cheung due to his immaturity, I do not consider that this is a factor which would allow me to award a further discount of the sentence.

32. Finally, applying the guideline in the context of the present case, a starting point of 3½ years is appropriate for trafficking in that quantity of cocaine.

33. After giving him the customary one-third discount to reflect his guilty plea, the sentence that I shall pass to the defendant is one of 28 months’ imprisonment.