HKSAR v. LAM HO CHEONG

DCCC 479/2020

[2021] HKDC 538

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 479 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.  The defendant pleaded guilty to the two offences on the indictment: firstly, wilfully obstructing a police officer in the due execution of his duty, contrary to section 36(b), Offences Against the Person Ordinance, Cap 212; and, secondly, trafficking in a dangerous drug, namely, 9.49 grammes of a solid containing narcotic content of 7.38 grammes of cocaine, both offences being committed on 28 March 2020 in the Admiralty MTR Station in Central.

2.  The facts are agreed.  They show that the defendant was intercepted by police officers for inquiry inside the MTR Admiralty Station, in Hong Kong on platform No. 4, and there was some difficulty in the initial inquiry.  The defendant ignored an initial request to show his identity card for inspection and then walked away.  Warnings were issued by the police officers intercepting.  He took an object from his handbag and attempted to throw it away, eventually placing that object in his mouth and struggling with the police officers.  That forms the substance of the 1st charge of wilful obstruction.

3.  There was a struggle with police.  Defendant was eventually taken to an ambulance where he spat out a resealable plastic bag which contained what were then suspected dangerous drugs.  He was cautioned at that time, said he took the dangerous drugs to Causeway Bay for consumption. 

4.  Eventually, the suspected dangerous drug was delivered to the Government Laboratory and found in total to contain 7.38 grammes of the narcotic cocaine. 

5.  The defendant on the next day made a cautioned statement, he admitted that the plastic bag spat out by him in the ambulance contained cocaine, that he was aware that he was to deliver about 8 grammes of cocaine for a total reward of $500.  The street value of that cocaine is estimated at $8,354.  

6.  The defendant’s antecedent statements show him to be a person of clear record, aged only 22 at the stage.  He has not recorded as being a drug addict and is in good health.  His antecedent statements show that he has a fiancée and a newborn baby.

7.  As far as mitigation is concerned, mitigation advanced is the defendant was conveying the drug for some $500.  He did that because he was short of money and his girlfriend was pregnant at the time and would deliver a baby soon.  The child was subsequently being delivered and the defendant considered himself responsible for it.

8.  He has a short working record in different fields but does not have any academic qualifications.  He hopes he will gain some while he is in custody.  He is aware the offence is serious.  He is remorseful.  He asks for a lenient sentence.

9.  The defendant has provided information to police but none of it is actionable or useful in mounting a prosecution, but it is of note that he has made that attempt to be helpful and it should be to a certain extent recognised in the sentence imposed on him.

10.  Turning to the principles of sentence, I take into account that the defendant has a clear record.  He has pleaded guilty.  He is entitled to one-third discount from any starting point for sentence that I impose on him.  The trafficking in the drug cocaine is governed by judicial guidelines.  The sentencing of cocaine is aligned to that in heroin.  The guideline sentence for quantities of heroin can be found in Lau Tak Ming [1990] 2 HKLR 370.  That case shows that for a quantity of drugs up to 10 grammes, the sentencing range for the court is to be 2 to 5 years’ imprisonment.  That is a sentencing range and the court can determine where on that sentencing range the defendant’s sentence should be passed but, normally, the quantity will be the most substantial determining factor in the assessment of a starting point for sentence.

11.  Taking into account the factors I have already outlined, in the case of this defendant, I will take a starting point for sentence of 48 months’ imprisonment.  That is 4 years’ imprisonment.  I shall reduce that to 32 months’ imprisonment.  Having regard to the defendant’s plea of guilty, that is a 30 per cent deduction from the figure of 48 months, that of 32 months’ imprisonment.

12.  I would also give this defendant a further deduction to represent the three factors: firstly, his young age; secondly, his clear record; and thirdly, the fact he has been co-operative.  So in respect of the offence of trafficking in dangerous drugs, the sentence of imprisonment will be one of 29 months’ imprisonment. 

13.  The defendant of course also faces the 1st charge in respect of wilfully obstructing the police.  I will take a starting point of 3 months’ imprisonment for that, reduce it to 2 months’ imprisonment for the defendant’s plea of guilty.  I do consider these offences are part and parcel of the same enterprise committed at the same time. Defendant clearly regrets his actions at the time of his arrest.

14.  Having regard to the overall sentence, I order that the sentences of imprisonment be served concurrently to each other, to a total overall sentence of 29 months’ imprisonment.  That will be the sentence of the court.