HKSAR v. LAU HIU MAN

DCCC 133/2020

[2020] HKDC 642

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 133 OF 2020

------------------------------

------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The defendant, a 46-year-old man, was caught smuggling drugs out of Hong Kong at the Hong Kong- Macau Ferry Terminal, Sheung Wan.

2.  On the evening of 19 November 2019, customs officers stopped the defendant at the Departure Hall of the Ferry Terminal for customs clearance and found on him a cigarette box containing a plastic bag of cocaine.

3.  The drugs were later examined by a Government Chemist who confirmed it to be 23.9g of a solid containing 21.7g of cocaine, which were estimated to have a street value of about $25,000.

4.  Other things also found on him included cash of $73, a ferry ticket to Macau, and a mobile phone with 2 sim cards.

5.  The defendant pleaded guilty before me to one count of drug trafficking.   

6.  Being no stranger to the court, the defendant has amassed 38 prior convictions over the past 30 years, 6 of them are drug-related but trafficking is his first offence, the majority of the rest of the convictions are burglaries.

7.  Counsel for the defendant, Mr Jim, said in mitigation that the defendant, obviously a drug addict, is remorseful for his wrongdoing, and indicated his guilty plea at the very first opportunity and asked the court to give the defendant a full one-third discount.

8.  The defendant is suffering from waist problem, Mr Jim said, his condition would only be made worse by incarceration but he agreed that the defendant is currently being medically taken care of in the prison.

9.  Mr Jim indicated that the defendant would not be relying on part-consumption as a reason for further reduction in sentence and insofar as international element as an aggravating factor is concerned, Mr Jim asked the court to be as lenient as possible.

10.  There are sentencing guidelines which suggest that for trafficking between 10g to 50g of cocaine, the usual term would be one of 5 to 8 years. Based on the amount the defendant admitted to trafficking (21.7g), I would take 71 months as the starting point.

11.  If there exist aggravating features, the court may adjust the starting point upward. Here in the present case, the fact that the defendant tried to smuggle drugs out of the jurisdiction aggravates the matter.

12.  As for the level of enhancement for the international element, the Court of Appeal in Chung Ping Kun CACC 85/2014 laid down broad guidelines in relation to this aggravating factor in drug trafficking cases involving less than 1000g of narcotic, and suggested that for up to 250g of drugs, the level of enhancement is 6 months.

13.  However, in another case (Choi Chun Wo CACC 273/2017), the Court of Appeal in dealing with the question of enhancement for the international element has this to say:

“It has been held that in relation to the international element in drug trafficking cases within the lowest band of up to 250 grammes, it will “generally” not be appropriate to impose an enhancement of sentence of less than 6 months’ imprisonment. However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent.”

14.  Taking into account the particular facts of the present case, I would add 3 months to it for the international element, which brings the starting point up to 74 months.

15.  As far as mitigation is concerned, there isn’t anything of substance besides his timely guilty plea; giving him the one-third discount, the starting point is reduced to 49 months.

16.  I see no reasons for any further reduction in sentence, that being the case, the defendant is therefore sentenced to 49 months’ imprisonment.