HKSAR v. LI HON WAI

DCCC 922/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 922 OF 2015

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REASONS FOR SENTENCE

1.  The defendant faces 4 charges of "Trafficking in a dangerous drug" (Charges 1 to 4). He pleaded guilty to Charges 1 to 3. The prosecution applied to leave Charge 4 in the court file; not to be proceeded against him without leave of court. I granted the application.

Summary of Facts

2.  This case originates from several dangerous drug "controlled buy" transactions, which all took place in an unlicensed pub.  All transactions involved cocaine.

3.  Between June and August 2015, undercover police officers (PWs 1 to 3) patronized a pub named "Sunshine Club" ("the Pub") situated at the address particularized in the Charges on several occasions.

Charge 1

4.  About 11:25 p.m. on 26 June 2015, PWs 1 and 2 arrived at the Pub.  The defendant greeted them and led them to Room V5.  About 12:10 a.m. on 27 June 2015, the defendant offered to sell "coke" to PWs 1 and 2 at $400 per unit.  He told them "coke" meant cocaine.  PWs 1 and 2 agreed to buy 2 units.  Upon receiving $800 from PWs 1 and 2, the defendant took out 2 packets (Exhibits P1 and P2) from his trouser pocket and handed them to PWs 1 and 2.

5.  No arrest was made on that day.

6.  Exhibits P1 and P2 were later found to contain a total of 0.16 gramme of a solid containing cocaine.

Charge 2

7.  About 11:40 p.m. on 30 June 2015, PWs 1 and 2 arrived at the Pub.  The defendant led them to Room V5.  About 12:30 a.m. on 1 July 2015, the defendant offered to sell "coke" to PWs 1 and 2 at $800 for 2 units.  PWs 1 and 2 agreed to buy 2 units.  Upon receiving $800 from PWs 1 and 2, the defendant took out 2 packets (Exhibits P3 and P4) from his trouser pocket and handed them to PWs 1 and 2.

8.  No arrest was made on that day.

9.  Exhibits P3 and P4 were later found to contain a total of 0.24 gramme of a solid containing 0.20 gramme of cocaine.

Charge 3

10.  About 12:45 a.m. on 7 August 2015, PW1, PW3 and PW4 (WDPC 4954; who also disguised as a customer) arrived at the Pub.  The defendant led them to Room V5.  He then offered to sell "coke" to PWs 1 and 3 at $500 per unit.  PWs 1 and 3 agreed to buy 2 units.  Upon receiving $1,000 (10 pieces of marked $100 banknote) from PWs 1 and 3, the defendant took out 2 packets (collectively Exhibit P5) from his trouser pocket and handed them to PWs 1 and 3.

11.  Exhibit P5 was later found to contain a total of 0.39 gramme of a solid containing 0.19 gramme of cocaine.

12.  About 1:50 a.m. in the same evening, the Police raided the Pub.  Before the Police entered the premises, the defendant rushed to Room V5 and said to PWs 1 and 3 "The Police are coming, be careful."

13.  Upon search, the marked money (in relation to Charge 3) was seized from the defendant's right trouser pocket.

Post-arrest Matters

14.  Under caution, the defendant admitted the offences in relation to the selling of cocaine to the undercover police officers.  He claimed that he was a part-time employee of the Pub receiving $500 per day.  He refused to disclose the identity of his boss.

15.  On 12 August 2015, PWs 1 to 3 positively identified the defendant at the respective ID Parades.

Mitigation & Sentence

16.  The defendant is 35 and single.  He has 8 conviction records, which included 1 offence of "Smoking/injecting a dangerous drug" (dated 2004).  Defence counsel Mr. WAN informed me that the defendant currently works as a warehouse clerk earning $350 per day.  He resides with his grandmother (aged 80) and supports her financially.

17.  In mitigation, Mr. WAN submitted that the defendant sold drugs to his customers because he wanted to earn some quick money.  Mr. WAN stressed that the quantity of cocaine involved in each charge was less than half a gramme.  All 3 offences took place in less than 2 months.

18.  Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects.  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, so that there is a deterrent effect.

19.  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.

20.  For "controlled buy" situations, I have borne in mind the comments made by  McWalters J (as he then was) in HKSAR v PAU King Kong [2013] 3 HKLRD 676  on sentencing a drug trafficker selling drugs to an undercover police officer on multiple occasions[1].

21.  In Charges 1 to 3, the defendant trafficked in 0.16 gramme of a solid containing cocaine; 0.20 gramme and 0.19 gramme of cocaine respectively.  For such small quantities, a starting point slightly lower than 2 years' imprisonment is appropriate.  I adopt 21 months as the starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 14 months' imprisonment for each charge.

22.  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 2 months in Charge 2 consecutive to Charge 1; and

(ii) 2 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 18 months.