HKSAR v. LAU KA WING

DCCC 410/2022

[2023] HKDC 649

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 410 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to the Summary of Facts of 3 charges:

(i)  trafficking in dangerous drugs, contrary to sections 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge);

(ii)  driving a motor vehicle with any concentration of specified illicit drugs, contrary to section 39K(1)  of the Road Traffic Ordinance, Cap 374 (2^nd charge); and

(iii)  driving an unlicensed vehicle, contrary to section 52(1)(a)  and (10)(a)  of the Road Traffic Ordinance, Cap 374 (3^rd charge).

Facts

2.  At 0243 hours on 23 November 2021, police intercepted a private vehicle, registration number XC1189 (“the Vehicle”)  driven by the defendant with no passenger on board at the roadblock outside Sha Tin Sports Ground, No. 18 Yuen Wo Road, Sha Tin, New Territories.  The defendant was asked to alight from the Vehicle for inquiry, during which he placed a box at the driver seat of the Vehicle.  Police then searched the Vehicle in the presence of the defendant and found inside the box 18 cigarettes containing a total of 1 gramme of a solid containing 0.72 grammes of cocaine (E1).  Under caution, the defendant admitted putting cocaine into the cigarettes for his own consumption.  

3.  Further search of the Vehicle, the following drugs (collectively referred to as E2)  were found under the carpet of the driver seat: 

(a)  1 resealable transparent plastic bag containing 5 resealable transparent plastic bags containing a total of 0.8 grammes of a solid containing 0.75 grammes of cocaine;

(b)  1 resealable transparent plastic bag containing:

(i)  3 resealable transparent plastic bags containing a total of 0.46 grammes of a solid containing 0.4 grammes of cocaine; and

(ii)  13 resealable transparent plastic bags containing a total of 4.86 grammes of a solid containing 4.21 grammes of ketamine;

(c)  1 resealable transparent plastic bag containing 2 resealable transparent plastic bags containing a total of 0.3 grammes of a solid containing 0.26 grammes of cocaine;

(d)  1 resealable transparent plastic bag containing 0.17 grammes of a solid containing 0.16 grammes of cocaine; and

(e)  1 resealable transparent plastic bag containing 0.17 grammes of a solid containing 0.15 grammes of cocaine.

4.  The defendant was arrested for trafficking in dangerous drugs in relation to E2.  Under caution, he said that he bought the same for his own consumption. 

5.  Total cash of $610.7 was found in the Vehicle.  The police searched the defendant and found 3 mobile phones and cash of $515.8 on him.

6.  Screening breath test and rapid oral fluid test was conducted against the defendant at 0400 hours of the same day.  He was tested positive for cocaine and was arrested by the police. 

7.  Later on the same day, specimen of blood from him was obtained at Prince of Wales Hospital with his consent. 

8.  Government chemist’s certificate confirmed the narcotic contents of E1 and E2, and in the defendant’s specimen of blood cocaine, benzoylecgonine as well as ecgonine methyl ester were detected. 

9.  The defendant said under caution in a video-recorded interview conducted on the same day that he borrowed the Vehicle from his friend the day before because his own car needed to be repaired.  He bought E1 and E2 for self-consumption from another person at Portland Street two days before and he placed the E1 and E2 inside the Vehicle. 

Criminal Record

10.  The defendant had 4 previous convictions with none similar to 1^st charge. He had 1 previous traffic conviction relating to 3^rd charge in 2022 for an offence committed 2 months before the 3^rd charge offence. 

Mitigation

11.  The defendant is aged 37.  He is married.  At the time of the arrest, he was living with his parents, his wife and 2 daughters.  Prior to his arrest, he worked as a transportation worker.  As little work was available because of the pandemic, he worked as a part-time warehouse worker, earning about $9,100 per month.  He contributed $5,000 for family expenses. 

12.  The defendant admitted being a drug abuser himself and he would use cocaine. 

13.  Defence counsel submitted that for the drugs in the case, the defendant was given the cocaine after he purchased them and in addition he was asked to deliver the ketamine.  The defendant consumed some cocaine on the day and was later being stopped by the police. 

14.  It was said that due to the pandemic, the price of everything goes up.  In order to earn some quick money, the defendant would deliver drugs to designated places. 

15.  It is said that the money seized from him totalling $515.8 was his own money and it has no connection with drugs dealing.  It was also submitted that the defendant had no previous convictions for drug-related offence and that he had been out of trouble since year 2011. 

16.  Defence counsel originally submitted that all cocaine was for the defendant’s own consumption. On the court’s indication that the court had reservation to accept the said submission and that the court was willing to conduct a Newton hearing to solve the issue, defence counsel conceded that the defendant, after being explained of his rights, decided not to proceed with the Newton hearing.  The submission was withdrawn. 

17.  Defence counsel submitted that according to the sentencing tariff, for trafficking 2.44 grammes of cocaine, the sentence starting point would be in the range of 2 to 5 years’ imprisonment.  For trafficking 4.21 grammes of ketamine, defence counsel submitted that the sentencing starting point would fall within 2 to 4 years’ imprisonment. 

18.  Defence counsel submitted that as 2 different drugs are seized, the court should consider the combined approach when sentencing.  He also referred this court to the cases of HKSAR v Wong Kin Kau, CACC 269/2009 and HKSAR v Yau Ka Ming, CACC 144/2013. 

19.  The defence counsel invited this court that by reason of the defendant’s guilty plea and he has not committed any offence for the last 11 years, to consider a lower sentencing starting point, and to afford the defendant one-third sentencing discount and also to impose, as far as possible, a concurrent sentence for the 3 charges. 

Discussion

20.  Before sentencing, the court has considered carefully all that was advanced on behalf of the defendant, including the letter from the defendant’s employer and the legal authorities in the area. 

1^st charge

21.  On conviction upon indictment of this charge, the maximum sentence is a fine of $5 million and imprisonment for life. 

22.  Trafficking in dangerous drugs is a very serious offence.  In usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor. 

23.  The drugs involved in this case is 2.44 grammes of cocaine and 4.21 grammes of ketamine. 

24.  For trafficking 2.44 grammes of cocaine, 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 appropriate sentencing starting point is 32 months’ imprisonment. 

25.  For trafficking 4.21 grammes of ketamine, following the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the appropriate sentencing starting point is 34 months’ imprisonment. 

26.  If all the drugs in this charge, ie 6.65 grammes of drugs trafficked, were cocaine, the sentencing starting point would be 48 months’ imprisonment. If all the drugs trafficked in this charge were ketamine, the sentencing starting point would be 40 months’ imprisonment.  Under the combined approach and applying the ratio test, the sentencing starting point in this charge should be 42 months’ imprisonment. 

27.  It is well established that as there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced.  In this case, the court will enhance the same by 3 months, taking the sentencing starting point to 45 months’ imprisonment.  

28.  The defendant had pleaded guilty which is the most valid mitigating factor.  He is therefore entitled to a full one-third sentencing discount, bringing the sentence of this charge to 30 months’ imprisonment. 

29.  It is well established that committing an offence because of financial difficulty or with a wish to earn quick money is not a valid mitigating factor. 

30.  This court accepts that the defendant himself is a drug abuser and part of the drugs seized was for his own consumption.  Accordingly, this court will exercise its discretion and discount the sentence by 3 months’ imprisonment. 

31.  The defendant is sentenced to 27 months’ imprisonment for this charge. 

2^nd charge

32.  On conviction upon indictment, a person convicted of this charge is liable to a fine at Level 4 and imprisonment of 3 years. 

33.  According to paragraph 9 of the Summary of Facts, the defendant’s specimen of blood contained cocaine, benzoylecgonine and ecgonine methyl ester.

34.  Court of Appeal in Secretary for Justice v Chan Hon Hoi [2011] 1 HKLRD 808 said in paragraphs 24 to 27 of the judgement that: 

“24. Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. Drugs also impair motor coordination skills and judgment, rendering a driver incapable of driving responsibly and safely. Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large.

25. In many ways, driving under the influence of drugs can be more serious than dangerous driving. Under section 37(4)  of the Road Traffic Ordinance, Cap 374, a person is to be regarded as driving dangerously ‘if (a)  the way he drives falls far below what could be expected of a competent and careful driver; and (2)  it would be obvious to a competent and careful driver that driving in that manner would be dangerous.’ Dangerous driving could be established by a momentary lapse of concentration or a single act of error of judgment.

26. On the other hand, when someone sets out to drive whilst under the influence of drugs, he must be aware, at the outset, of the risk associated with his driving. It can be a deliberate anti-social and dangerous act, and not just a spontaneous irrational one.

27. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence. The maximum sentence of 3 years’ imprisonment may not be adequate in a bad case of driving under the influence of drugs.”

35.  The defendant admitted under caution that he had consumed some cocaine before he was intercepted by the police whilst driving the private vehicle. 

36.  In considering the sentencing starting point, this court has regard to, inter alia, the following factors: 

(i)  This is the defendant’s first conviction of the offence. Luckily, there was no accident involved and no one was injured nor was any property damaged as a result of his driving before he was intercepted by the police;

(ii)  the quantity of drugs in his blood; and

(iii)  the vehicle that the defendant was driving was unlicensed at the time, which poses a high risk to any passer-by being affected by the dangerous driving in case of an accident.

37.  Considering the factors above mentioned, the court will impose a sentencing starting point of 15 months’ imprisonment in this charge. 

38.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount.  He is sentenced to 10 months’ imprisonment for this charge. 

Disqualification

39.  The defendant is also disqualified from holding or obtaining for driving license of any class of vehicles for 2 years from today.

3^rd charge

40.  This is the defendant’s second conviction of this offence.  He committed a similar offence 2 months before. 

41.  Considering the circumstances of the case, the appropriate sentencing starting point will be 6 weeks’ imprisonment for this charge. 

42.  By reason of the defendant’s guilty plea, he is entitled to one-third sentencing discount and is therefore sentenced to 4 weeks’ imprisonment for the 3^rd charge. 

Totality Principle

43.  The nature of the 1^st charge and that for the 2^nd and 3^rd charge are entirely different though they were committed at the same time. 

44.  This court has taken into consideration the presence of the 3^rd charge whilst sentencing the defendant for the 2^nd charge.  Having regard to the overall culpability of the defendant in the whole case, the court considers that the total sentence of 33 months’ imprisonment is just and proportionate. 

45.  Accordingly, the sentence of the 2^nd charge and 3^rd charge are to run totally concurrent to each other.  6 months of the sentence for the 2^nd charge and 3^rd charge is to run consecutive to the sentence of the 1^st charge, bringing the total sentence of the defendant in this case to 33 months’ imprisonment.