HKSAR v. CHAN KWAN LOK

DCCC 1017/2021

[2022] HKDC 600

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1017 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs.

2.  At around 1804 hours on 11 June 2021, the defendant was intercepted at the car park of One Regent Place, Yuen Long.  A quick search on the defendant and his crossbody bag did not uncover any illicit items.  He was then taken to his family home at Room 3015, Chak Sing House, Tin Chak Estate, Tin Shui Wai, for a house search.  A further thorough body search was also conducted on the defendant.

3.  It was then uncovered, concealed under the defendant’s right armpit, two paper towels each wrapping:-

(1)  a plastic bag containing 46 plastic bags containing a total of 7.08 grammes of a solid containing 6.22 grammes of cocaine; and

(2)  a plastic bag containing 38 plastic bags containing a total of 5.97 grammes of a solid containing 5.20 grammes of cocaine.

4.  Total drugs seized were 13.05 grammes of a solid containing 11.42 grammes of cocaine.

5.  Also found on the defendant’s person were three mobile phones and a bunch of three keys to the iron gate, main door and bedroom of the defendant of his family’s home.  There was cash of HK$11,561.20 in his crossbody bag.

6.  During the search of the defendant’s room in his family home, three bundles of resealable plastic bags of different sizes, two electronic scales with one box and a plastic spoon were found.

7.  Arrested and cautioned, the defendant said the drugs were for his self-consumption.

8.  The market retail value of the drugs were estimated to be around $17,000.

9.  The defendant now admits and accepts that the dangerous drugs found on him were for the purpose of unlawful trafficking.

10.  The defendant is 26 years old.  He has a criminal conviction for dangerous driving causing grievous bodily harm for which he was sentenced on 19 July 2021 for sentences including 7 months’ imprisonment.

11.  I am told that the defendant received education up to Form 3 and he worked at a car wash earning around $15,000 a month before his arrest.

12.  In her oral and written mitigation submissions, counsel for the defendant, Ms Ko, asks the court to impose a sentence as lenient as possible.  She submits that the defendant is now remorseful.  He feels very sorry for causing his family to worry, especially, his elderly grandmother.  He hopes he would be able to see her final days after he serves his sentence.  I am grateful to Ms Ko for her detailed mitigation submissions for the defendant.

13.  It is not disputed that the sentencing for the trafficking of drugs in this case, the sentencing guidelines in Lau Tak Ming is applicable, and based on the quantity alone and taking a mathematical approach the starting point for trafficking in 11.42 grammes of cocaine would be around 5.1 years’ imprisonment.

14.  I have received letters written by the defendant, his father, and one by Deacon Wong.  The letters have been duly considered.  The defendant’s parents are in court in support of the defendant.

15.  Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal has laid down guidelines for trafficking in different types of drugs.  In AG v Rojas, the Court of Appeal decided that the sentencing guideline for trafficking in heroin, as laid down in R v Lau Tak Ming was applicable to trafficking in cocaine.

16.  According to these authorities, the appropriate starting point for trafficking of cocaine between 10 and 50 grammes of cocaine, the appropriate sentence is 5 to 8 years’ imprisonment.

17.  In the present case, the weight of cocaine trafficked by the defendant was 11.42 grammes.  I agree with Ms Ko that as a matter of arithmetic calculation according to the cocaine guideline, the appropriate starting point would be 5.1 years’ imprisonment.

18.  I notice that the defendant in his letter asked the court to take into consideration the sentence he has served for his dangerous driving case.  He seems to be saying that because the custody time for the present case has been shortened.  I do not know how the Correctional Services Department will eventually compute his time for the court’s sentences.  In any event, what the defendant says is irrelevant in the sentencing consideration.

19.  The traffic offence was unrelated to the present drug trafficking case as Ms Ko accepted that they are only similar in time.  In my view, the two offences are, indeed, separate and distinct both in time and nature.  For the very serious nature of a trafficking offence, I do not see any reason either to shorten the starting point in the present case or reduce the sentence as a mitigating factor or for the principle of totality of sentence.

20.  Having considered the submissions of defence counsel and all the circumstances, I will take 5 years’ imprisonment as a starting point.  The starting point is adopted on the assumed basis that the defendant was in the band of courier or storekeeper as explained in the case of HKSAR v Herry Jane Yusuph.  Otherwise, if he was engaged in actual or direct trafficking a more severe sentence may be imposed.

21.  I will give the defendant one-third discount for his timely guilty plea.  There is no other effective mitigating factor that may reduce the sentence further.

22.  For these reasons, the defendant is sentenced to 40 months’ imprisonment.