HKSAR v. SUNG HEI LIM

DCCC 863/2022

[2024] HKDC 426

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 863 OF 2022

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REASONS FOR SENTENCE

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1.  Defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The narcotic content on the drug is a narcotic content of 5.78 grammes of cocaine.

2.  The Admitted Facts are simple.  They show that on 2 December 2021 at around 2.50 pm, defendant was intercepted leaving a room in Wong Tai Sin.  On search of the defendant, cocaine was found in the front pocket of the defendant’s hoodie.  The total street value of the cocaine discovered in the defendant’s hoodie was $9,572.  Along with that was found an iPhone and $160 in cash.

3.  On his arrest, the defendant said the drugs were collected by him from Room C20 on the instructions of an Ah Sing.  The defendant was awaiting Ah Sing to give him further instructions at the time.  The defendant had a key to Room C20 and in the Admitted Facts the defendant has admitted possessing the drugs seized for the purpose of unlawful trafficking.  There are quite lengthy descriptions of defendant’s later admissions in a video-recorded interview which given the defendant’s plea and the admissions today are not particularly relevant. 

4.  The defendant’s background shows that he is 18 years old now and has a clear record. 

5.  As far as the approach or the guideline approach to sentencing we find a number of cases when one looks at cocaine.  The relevant cases of Attorney General v Rojas [1994] 2 HKCLR 60 where the court is enjoined to apply the tariff or the guideline sentencing for heroin which can be found of course in the case of R v Lau Tak Ming.  Here we are dealing with a quantity of 5.78 grammes of narcotic content of cocaine which puts it in the lowest band in Lau Tak Ming which is quantities up to 10 grammes, a starting point for sentence would range between 2 to 5 years’ imprisonment.  I have been told that based solely on an arithmetical approach to sentencing, the starting point for sentence would be at around 3 years and 8 months’ imprisonment or 44 months’ imprisonment. 

6.  The appellate courts have more recently looked at the approach to sentencing for trafficking in dangerous drugs in the case of HKSAR v Lee Ming Ho, CACC130/2019 and 150 HKCA.  It sets out a number of factors which appear to be a common sense approach to sentencing.  Firstly, to identify the guideline band, which we have done so between 2 to 5 years; identify the defendant’s role and culpability and what can be seen from the admission made is the defendant is probably at the lowest level of culpability and is a mover or courier of the drugs.  One should identify the location within the band given that it might be necessary to go outside the band given the circumstances of the offender and his role in the offence.  Well, it has already been done and the sentence would range somewhere around 44 months’ imprisonment as a starting point.  Consider any aggravating factors, there are no particular aggravating factors shown in the statement of facts I have here.  Consider the mitigating factors.  Mitigating factors really relate to the defendant’s age, his education level, his what I describe as naivety, and then finally achieve a fair outcome for the defendant. 

7.  I have already given some details of the defendant’s background.  He is now 18 years old.  At the time of the offence of course he was aged 16 so he was very young.  He has had a clear record up to today in fact.  He was initially remanded in custody but was granted bail after some 5 months and he has completed an educational Diploma in the time that he has been on remand on bail.  I am told he did that in May 2023.  He lives at home at this point.  He has difficulty with language in that he suffers from dyslexia.  I have seen letters about him from teachers and social workers saying that he is well spoken of.  He seems to be a pleasant young man who has made a major error of judgement.  The offences appear to be out of character and probably a result out of a rather naïve approach to solving problems relating to money. 

8.  So taking all those factors into consideration, of course the court is limited in the sentences it can impose, it must be a sentence of imprisonment, it must be an immediate sentence of imprisonment given the quantity of drugs and the nature of the drug involved and the defendant’s role, I take into account the defendant is very young and naïve, doing this to earn money with no particular aggravating factors.  He has made an early plea so he is entitled to a full one-third discount. 

9.  Well, how will I approach this?  Well I take into account the defendant’s, as I say, his clear record and his youth when he committed the offences and I will deduct the original starting point which would have been 44 months by 6 months for that.  I will also deduct by a further 2 months to represent the fact the defendant committed this offence at a very young age and since that time has taken steps to rehabilitate himself and on the face of it is a person who can, after he has completed a sentence of imprisonment, can lead a valuable life.  So in all, I will deduct a total of 8 months’ imprisonment from the original starting point.  It gives me an overall starting point now of 36 months’ imprisonment. 

10.  The defendant is entitled to a full one-third discount, which reduces the final sentence to one of 24 months’ imprisonment.