HKSAR v. LAW LOK KIU

DCCC 793/2022

[2023] HKDC 982

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 793 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to Summary of Facts.

Facts

2.  On 11 May 2022 at around 1637 hours, police on patrol spotted the defendant acting furtively outside Luxe Manor, 39 Kimberley Road, Tsim Sha Tsui, Kowloon (“Hotel”). 

3.  The defendant was stopped and searched.  Upon search, a cigarette box containing 35 plastic bags containing 5.74 grammes of a solid containing 5.43 grammes of cocaine was found inside the defendant’s left trouser pocket. 

4.  The defendant was arrested for trafficking in a dangerous drug.  Under caution, he admitted that the cocaine was for self-consumption.  At the time of arrest, he had cash of HK$4,576.1, 3 mobile phones, a key card of the hotel and a car key in his possession. 

5.  Upon search of his private car registered in his mother’s name parked outside the Hotel, the following items were seized: 1 pair of scissors, 1 brown paper bag, 2 weighing scales and 6 large empty transparent resealable plastic bags containing 372 small empty transparent resealable plastic bags. 

6.  Government chemist confirmed the narcotic contents of the drugs seized.  The estimated street value of these drugs was around HK$8,960.

7.  At the material times, the defendant had in his possession the seized drugs for the purpose of unlawful trafficking. 

Criminal Record

8.  The defendant has a clear record.

Mitigation

9.  The defendant is aged 24.  He is born in Hong Kong and was educated up to Form 6 level.  He lives with his parents, grandparents and younger brother. He had been working in logistic and transport earning around HK$25,000 per month, but his income decreased due to the impact of COVID-19. 

10.  Defence counsel said while part of the drugs was for the defendant’s own consumption, the rest of the drugs was for trafficking.  The reason why the defendant committed the offence was because he wanted to earn some quick money in order to assist his father receiving private medical care for his heart condition. 

11.  Defence counsel conceded that for trafficking up to 10 grammes of cocaine would warrant a sentencing guideline of 2 to 5 years of imprisonment.  She also reminded this court that the defendant has a clear record and there is no history of the defendant committing trafficking in dangerous drugs offences in the past. 

12.  Defence counsel also conceded that the most valid mitigating factor is the defendant’s guilty plea for which he is entitled to one-third full sentencing discount.  It is said that prior to the offence, the defendant had been working as a volunteer for a lot of NGOs in the Sai Kung district, assisting elderly people. 

13.  She asked this court for sentencing discount by reason of the defendant’s own consumption of part of the drugs.  She said that the urine test report on the defendant supported that he was a cocaine user himself. 

14.  Defence counsel also handed to this court 2 mitigation letters, one from the defendant himself and one from his father, which suggests that the defendant is now deeply remorseful as to what he has done and the family is fully supportive of the defendant in his rehabilitation on his release from prison.

Discussion

15.  Before sentencing, this court has carefully considered mitigation by defence counsel as well as mitigation letters submitted. 

16.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life. 

17.  For trafficking of cocaine in this case, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point is 43 months and 15 days’ imprisonment. 

18.  The offence is a very serious offence and personal background is seldom a mitigating factor.  The fact that the defendant committed the present offence because he was in need of money for his father’s private medical care is not a valid mitigating factor. 

19.  Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea for which he is entitled to full one-third sentencing discount.  His sentence is therefore discounted to 28 months and 28 days’ imprisonment. 

20.  Urine test performed on the defendant confirmed that he was a cocaine user himself.  Defence counsel submitted that part of the drug seized was for the defendant’s own consumption.  In view of the urine test report, this court is willing to accept that the defendant is a cocaine user himself and that a very small quantity of drugs seized would be consumed by him.  For this reason, the court is willing to exercise its discretion to further discount his sentence by 2 months and 28 days’ imprisonment. 

21.  Mitigation letters showed the defendant’s genuine remorse and family supports the defendant in his rehabilitation.  However, authorities said that the defendant’s remorse and his clear record had already been subsumed in the one-third sentencing discount. 

22.  Accordingly, the defendant is sentenced to 26 months’ imprisonment for this offence.