HKSAR v. LAM TING

DCCC 809/2017

[2018] HKDC 307

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 809 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking[1] in, and one charge of possession[2] of, a dangerous drug (charges 1 and 2 respectively).

Summary of facts

2.  Police officers conducted an anti-narcotics operation in the vicinity of King Lam Estate, Tseung Kwan O on 19^th June 2017.

3.  At 11:07pm, a black private vehicle that was being driven by the defendant stopped at the roundabout outside King Min House.

4.  The defendant lowered the driver side window and was seen to be looking around while talking on a mobile phone. Next to him sat a female passenger.

5.  The defendant got out of the vehicle one minute later. Two Police officers approached the defendant and disclosed their Police identity. They made enquiries with the defendant next to the vehicle.

6.  A third Police officer arrived a few minutes later as reinforcement and conducted a search of the vehicle.

7.  The officer lifted up the loosened window control panel of the driver side door and found the following items hidden beneath: one re-sealable transparent plastic bag containing 3 smaller re-sealable transparent plastic bags with cocaine inside (Exhibit 1); another re-sealable transparent plastic bag containing 6 re-sealable transparent plastic bags containing 52 smaller re-sealable transparent plastic bags with cocaine inside (Exhibit 2).

8.  Exhibits 1 and 2 form the subject matter of the trafficking charge.

9.  $53,900 cash was found from inside the storage compartment between the front seats.

10.  From inside the defendant’s black bag, cash of $3,251, one batch of keys, one black iPhone 7 Plus, one Samsung S7 phone and one Nokia mobile phone were found.

11.  The defendant was arrested for the offence of trafficking in a dangerous drug.

12.  At about 3:29am on 20^th June, a house search was conducted at the defendant’s residence at Room 1218, Kai Shun House, Kai Tin Estate, Kwun Tong.

13.  From a drawer of a wardrobe inside the defendant’s bedroom, 3 re-sealable transparent plastic bags containing 30 small re-sealable transparent plastic bags containing cocaine were found (Exhibit 3). The contents inside these bags form the subject matter of charge 2.

14.  The defendant was arrested for the offence of possession of dangerous drugs. The defendant said the drugs belonged to him and that his parents had no knowledge of them.

15.  Subsequent examination of the contents of the various plastic bags revealed the following: the bags in Exhibit 1 and 2 found in the vehicle driven by the defendant contained a total of 16.8g a mixture which contained 15.22g of cocaine.

16.  The bags found from the drawer insider the defendant’s bedroom contained a total of 6.66g of a mixture which contained 6.08g of cocaine.

17.  The estimated street value of exhibits 1, 2 and 3 are respectively $879.20, $20,221.60 and $8,364.96.

Previous convictions

18.  The defendant has one conviction for common assault dating back to July 2010 and two previous convictions for trafficking in dangerous drugs from a Court of First Instance case dated 4^th January 2011 when he was sentenced to 4 years’ imprisonment.

19.  Given that the earlier trafficking convictions are about 5 and a half years before the defendant’s commission of the present trafficking offence, I do not find that the defendant can be regarded as a repeated offender, and so the previous convictions are not to be an aggravating factor. I will not enhance the sentence on charge 1 on this basis.

Mitigation

20.  The defendant is 23 years old (22 at the time of the commission of the offences) and educated up to form 4 level in Hong Kong. He is single but has a 2-year old daughter with his former girlfriend.

21.  Since the defendant’s separation with his girlfriend in the end of 2016, the defendant has become the sole guardian of their daughter and the defendant’s father had to quit his job as a construction site worker to stay home to look after the child.

22.  The defendant, his daughter and the defendant’s parents live together. The defendant is the main breadwinner. He worked as an investment consultant earning a basic salary of $13,000. With commission, his total monthly income would be around $20,000.

23.  The defendant’s mother continued to work in a small Chinese restaurant with a limited income. The main financial burden of this family of four had fallen on the defendant’s shoulders, which he found heavy.

24.  In early 2017, the defendant borrowed $30,000 from a finance company. It was his desire to repay the loan as soon as possible that caused him to agree with some old friends to deliver the drugs in charge 1. The defendant is remorseful.

Sentencing considerations

25.  The maximum sentence on conviction upon indictment for an offence of trafficking in a dangerous drug is that of a fine of $5 million and imprisonment for life.

26.  The maximum sentence on conviction upon indictment for an offence of possession of a dangerous drug is that of a fine of $1,000,000 and imprisonment for 7 years.

27.  Sentencing guidelines for trafficking in heroin[3] was held to apply to cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.

28.  The applicable band of sentence for trafficking between 10 to 50 grammes of cocaine is that of 5 to 8 years’ imprisonment.

29.  In relation to the possession charge, it is trite law[4] that if the narcotic content involved is what would usually be in the possession of a drug user for his self-consumption, the range of sentence should be 12 to 18 months’ imprisonment, subject to any aggravating or mitigating circumstances.

Charge 1

30.  For 15.22g of cocaine, an arithmetical application of the guideline tariff would lead to a starting point of 64 months’ imprisonment. This is the starting point that I will adopt.

31.  I find that there are no aggravating circumstances in relation to the commission of this offence.

32.  As for mitigating circumstances, I find that although the defendant is only 22, he does not fall into the category of ‘extreme youth’ and will, therefore, not be granted any discount on this basis.

33.  Although I do appreciate the difficulties that the defendant faces, and will be facing, as a single father, his personal circumstances are not such that they would warrant a departure from the guideline sentence.

34.  The only mitigating factor is the defendant’s timely plea of guilty. For this he is given the full one-third discount. The sentence after plea on charge 1 is 42.7 months’ imprisonment.

Charge 2

35.  Since the defendant is being sentenced in the same proceedings to more than 9 months’ imprisonment for the trafficking offence, section 54A(1A)(a) of the Dangerous Drugs Ordinance, Cap.134 applies, and a custodial sentence can be imposed on the defendant in relation to charge 2 without first considering a report on the defendant’s suitability for cure and rehabilitation.

36.  Furthermore, given the seriousness of, and sentence imposed on, charge 1, I do not find it necessary to so consider before sentencing the defendant on charge 2.

37.  The defendant was in possession of 6.08g of cocaine. They were found inside his home. The prosecution saw it appropriate to prosecute the defendant for simple possession of this batch of drugs, instead of seeking to ask the court to infer that they were also for the purpose of trafficking.

38.  Although I note that this is the defendant’s third trafficking in dangerous drugs conviction, and that he has no previous conviction for possession of dangerous drugs, I will accept what Mr Tso for the prosecution told me about how they consider that there would be insufficient evidence to prove that the cocaine found in the defendant’s home were also for trafficking purpose. That being the case, I find that I also should not enhance the defendant’s sentence on the ground of there being any latent risk of distribution.

39.  I was referred by Ms Ng for the defendant to the case of HKSAR v She Suet Yee, CACC 383/2016. There the 22 year old applicant pleaded guilty to the same combination of charges. For the trafficking offence, she was sentenced to 44 months’ imprisonment for 22.2g of cocaine. For the possession of 1.09g of ICE, she was sentenced to 4 months’ imprisonment after plea. The sentences were ordered to be served concurrently, resulting in a final sentence of 44 months’ imprisonment.

40.  It is Ms Ng’s submission that given that her client is of the same age as the applicant in that case, a similar sentence should be imposed on the defendant.

41.  I am afraid I cannot agree with Ms Ng’s proposition for the following reasons.

42.  It is clear from the judgment that had the learned trial judge adopted an arithmetical approach to the sentence of the trafficking charge, the starting point would have been 3 months higher.

43.  Furthermore, the quantity of drugs involved in the possession charge there is much less than in the present case.

44.  Lastly, the applicant in that case was of previously clear record.

45.  For these reasons, I find that the case of HKSAR v She Suet Yee should be distinguished from the present case.

46.  For the 6.08g of cocaine involved, since this is the defendant’s first possession conviction, I adopt a starting point of 12 months’ imprisonment, which is discounted to 8 month’s imprisonment upon the defendant’s timely plea of guilty.

Totality

47.  Had the 6.08g of cocaine found in the defendant’s home also been for the purpose of trafficking, the total narcotic contents would become 21.3g, which would lead to a guideline starting point of 70 months’ imprisonment, and a sentence of 46.7 months’ imprisonment after plea.

48.  I find that the final total sentence should not be higher than this hypothetical sentence.

49.  Taking a step back, I order that 1.3 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1, the balance concurrently.

50.  The defendant is, therefore, sentenced to a total of 44 months’ imprisonment for the two charges.