HKSAR v. CHAN LAP HO

DCCC 638/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 638 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of offence avers that the defendant on 5 May 2015, outside Ground Floor, No 64, Un Chau Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 22.1 grammes of a solid containing 20.3 grammes of cocaine.

The facts

3.  This is a classic stop-and-search case.  At around 2:09 am on 5 May 2015, a team of police officers were on anticrime patrol at the junction of Un Chau Street and Yen Chow Street, Kowloon, when the defendant was walking towards them.

4.  At that time, the police officers saw the defendant and found him acting suspiciously in that he suddenly changed direction upon seeing the officers and tried to call a taxi.  The police officers immediately intercepted the defendant for further enquiry.

5.  Later, a search was conducted on the person of the defendant and they found between the defendant’s waist and his underpants a total number of 102 small plastic bags, containing a total of 22.1 grammes of a solid containing 20.3 grammes of cocaine.

6.  Defendant was immediately arrested by the police officers and at the time of arrest he was in possession of HK$580 and RMB1. Two mobile phones were seized and the estimated street value of the seized drugs was agreed to be around HK$21,857 at the time of the offence.

Criminal record and the background of the defendant

7.  In 2012, the defendant was brought before the District Court, facing two charges of similar offences of trafficking in dangerous drugs.  The District Court sentenced the defendant to Training Centre.

8.  The defendant has completed Secondary 5 education in Hong Kong.  He was born in Hong Kong.  He is still single and he lives with his parents and elder brother in Fu Cheong Estate in Sham Shui Po.

9.  At the time of arrest, he was a shop assistant.

Mitigation

10.  In mitigation, Miss Catherine Fung, counsel for the defendant, instructed by the DLA, prefaced her mitigation by asking the court to take into account that the defendant had pleaded guilty as soon as possible after her legal advice.  The defendant is remorseful and by pleading guilty, is saving the court’s time. 

11.  She also informed the court that the defendant was by his nature immature and whilst in Training Centre, he had worked very hard and earned himself a good progress award by the Correctional Services Department.  He also had studied and prepared for the public examinations and attained good grades in the DSE for most of the subjects except English and Chinese. 

12.  He spent altogether 15 months in the Training Centre and he was later discharged in July 2013.  He was, however, still subject to three years’ supervision.

13.  Ms Fung informed me that the parents of the defendant care for the defendant very much.  Upon the release from the Training Centre, his parents had first spent a total of about $15,000 for three months’ tuition fees for his private education in order to prepare him to sit for the examination again to attain a better result.

14.  The defendant eventually did not complete the course and left the school after three months, because the course fee was very expensive.  Defendant turned to work and he earned an income of about $7,000 as a store assistant.

15.  Miss Fung told me that the main reason why the defendant has committed this offence again was because he was weak-willed and was influenced by the dubious peers surrounding him.  The defendant simply did not know how to resist the temptations or invitations by his bad friends.

16.  Miss Fung said the defendant is now extremely remorseful and he had fully regretted for what he has done.  He understood that he would face a serious consequence and he accepted this consequence.

17.  Miss Fung also had submitted to court two letters written by both the defendant and his father. 

18.  In his letter, the defendant had said that he fully understood that he had let down his family members, especially his parents, but he was already fully remorseful and he hoped that the court can exercise its discretion and to be as lenient as possible so that he could reform himself.

19.  In his letter, the defendant’s father had blamed himself for not properly exercising supervision and control over his son.  He just hoped the court can understand and appreciate the feelings and the difficulties of the parents and be lenient when passing the sentence.

Sentencing considerations

20.  Trafficking in a dangerous drug is, of course, a very serious offence.  Anyone who is convicted of this offence would expect the court to be dealt with severely.

21.  The defendant is not a first offender.  He had already committed two similar offences and was last convicted in 2012.  Back then, the defendant was 18 years of age already and he was not extremely young. Today he is even older as he is now 21 already. 

22.  I consider therefore that the defendant can no longer rely on his age and immaturity as a mitigation.

23.  He should have considered himself very fortunate in the last occasion when the District Court had already given him a chance and sentenced him to Training Centre only.

24.  This could be evidenced by the fact that he had only spent 15 months in the Training Centre.

25.  Although I can appreciate that the defendant had been doing quite well during that period of time, after he was released, albeit that he was still under the statutory supervision, he still committed the present offence.  To me, this is simply inexcusable.

26.  The Court of Appeal had already laid down very clear guidelines for sentencing trafficking in a dangerous drug.  The subject matter of the present offence is cocaine.  By its nature, cocaine is a kind of serious dangerous drug.  As early as in 1994, in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal had already said that the sentencing guideline for heroin was equally applicable to cocaine.

27.  According to the tariff guideline for trafficking in heroin, for a quantity of 10 to 50 grammes, the sentence will be between the range of 5 to 8 years’ imprisonment. 

28.  The present offence involves a total of 20.3 grammes of cocaine.  Applying the guideline to this quantity, the proper starting point for this offence is 69 months’ imprisonment.

29.  After hearing the mitigation by the defence, I can see no effective mitigation other than the fact that the defendant had pleaded guilty in this occasion.

30.  The defendant should really spend his time in prison thinking about his life and his future and he should really make up his mind and determine to stay away from drugs and the influence of his bad peers.

31.  Because the defendant pleaded guilty this time, I will give him the full one-third discount. 

32.  In the end, I sentence the defendant to 46 months’ imprisonment.