HKSAR v. Kam Wai Lun

DCCC 189/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 189 OF 2017

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.About 5:50 a.m. on 7 December 2016, PC 5852 (PW1) was on patrol in plainclothes.  He saw a private car PN 9291 ("the Car") parked outside No.1 Tai Yuen Street in Wanchai.  PW1 found the circumstances suspicious and decided to observe the Car from a hidden spot nearby.

3.PW1 saw the defendant sitting in the nearside rear seat of the Car for some 6 minutes, whereas another male and a female were sitting in the front seats.  PW1 approached the Car around 5:56 a.m. and saw the defendant's right hand having some movement, which appeared that he was throwing something onto the car floor.  PW1 opened the nearside rear door of the Car and found on the car floor near the defendant's feet a resealable transparent plastic bag which contained 23.6 grammes of a solid containing 21.5 grammes of cocaine.

4.PW1 arrested the defendant for "simple possession".  Under caution, he admitted that the drug was his and that it was for self-consumption.

5.In his video recorded interview, the defendant admitted that the drug found inside the Car was cocaine and that it was for his own consumption.  That quantity would last him 1.5 months.  The defendant explained how, where and when he purchased the drug.  He claimed that he had in fact left the Car and gone home.  He returned because he had left the drug in the Car.  As he was picking up the drug, he saw a policeman approaching the Car, so he discarded the drug on the car floor.

6.The defendant now admits that he possessed the cocaine for the purpose of unlawful trafficking.

Mitigation

7.The defendant is 39 and single.  He has 23 conviction records, which included 12 drug-related offences with 8 "simple possession" and 2 "Trafficking".  His last conviction happened to be a "Trafficking" offence, for which he was sentenced to 5 years and 8 months' imprisonment in July 2012 (released in January 2015).  Defence solicitor Mr. CHONG informed me that prior to his arrest, the defendant was a transportation worker earning about $30,000 per month.  The rent of his residence was $8,000 per month.  His daily drug consumption rate was 0.8 to 1 gramme. 

8.In mitigation, Mr. CHONG submitted that the defendant claims self-consumption for an additional discount of his sentence. Mr. CHONG informed me that 12 to 14 grammes of the cocaine found in the present case were intended for the defendant's own consumption.  Mitigation letters were placed before me; their contents are duly noted.

Newton Inquiry

9.Mr. LUI for the prosecution does not accept the quantity of self-consumption claimed by the defendant.  At Mr. CHONG's request, a Newton inquiry on this issue was conducted.  It was a short hearing which lasted for less than 2 hours.  Only the defendant gave evidence.

10.In gist, the defendant claimed that prior to his arrest, he was a transportation worker at the fruit market in Yau Ma Tei.  He worked 2 shifts a day earning about $35,000 per month.  He has been a drug user for 14 to 15 years.  He would consume about 1 ounce of narcotics (both cocaine and ICE) per month; roughly 10 odd grammes of each type.

11.In the early hours on the day of his arrest, the defendant had just purchased a bag of cocaine at the price of $18,000 from someone at Tsim Sha Tsui.  He intended to share that bag of cocaine with a friend (someone who shares drugs with him on a regularly basis); about 12 to 13 grammes in that bag was intended for the defendant's consumption.  After buying the drug, the defendant asked a friend for a ride home to No.5 Tai Yuen Street in Wanchai.

12.During the journey, the defendant hid the bag of cocaine underneath the rear passenger seat.  Upon arrival, the defendant alighted from the Car and went home.  He then realized that he had left the drug in the Car so he called his friend.  He returned to the Car pretending to search for something in order to avoid his friend seeing what he was looking for.  He claimed that he had deliberately taken some time to retrieve the drug.

Sentence

13.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.  In the present case, the defendant trafficked in 21.5 grammes of cocaine.  The appropriate starting point is 69 months[1].

14.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2].  The defendant has numerous conviction records of "simple possession" and has been sentenced to a Drug Addiction Treatment Centre on 8 occasions.  I accept that he could have been a cocaine user at the time of the present offence.  As to the quantity claimed for self-consumption, I do not find his evidence in the Newton hearing credible.  The defendant was observed by PW1 having sat in the rear passenger seat of the Car for about 6 minutes.  If he was to return to the Car to the retrieve the drug, he did not need to sit down at all, needless to say for 6 minutes.  This is plain common sense.  Even if the drug was hidden underneath the rear passenger seat, it would have been a lot easier to just open the car door, bend down and reach for it.  I have no hesitation in rejecting the defendnat's story based on this reason alone.

15.His claim of having the financial means to purchase the drug "in bulk" is neither here or there and does not assist his case.  I am also aware of the packaging and quantity of the drug as well as the proximity of the defendant's residence in relation to the location of his arrest.

16.Based on the reasons stated above, I reject the defendant's claim that 12 to 13 grammes of the cocaine found was intended for self-consumption.  Furthermore, despite the possibility that he was a drug user, other than his bare assertion, there is simply no evidence to suggest that a significant proportion of the drug was for the defendant's own consumption[3].  Hence, I would not grant him any discount in this regard.

17.A Newton hearing was conducted for the purpose of determining the additional discount for self-consumption, if any, and the defendant's evidence was rejected.  In view of the rather short duration of the Newton hearing, I am prepared to exercise my discretion to grant him the full one-third discount[4] for his guilty plea, reducing the sentence to 46 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 46 months' imprisonment.