HKSAR v. Lee Kam Fai

DCCC 398/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 398 OF 2017

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Reasons for Sentence

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1.The Defendant pleads guilty to a charge of trafficking in a dangerous drug.

2.In the late evening on 3 February 2017, the police intercepted a taxi with the Defendant on board in the vicinity of the Hong Kong Golf Club, Sheung Shui, N.T.  In his front trouser pocket was a cigarette box containing a piece of tissue wrapping a re-sealable plastic bag containing a substance, later confirmed to be 23.80 grammes of a solid containing 19.70 grammes of cocaine.  He had $1,719 cash on him.

3.After arrest and caution he said he had purchased the cocaine for $13,000 and intended to resell it.

4.In the subsequent video-recorded interview under caution he said:

（1） He was a delivery worker earning about $10,000 per month;

（2） He was addicted to dangerous drugs and would consume 2 to 3 cigarettes containing cracked cocaine per week;

（3） The cracked cocaine seized from him was for resale;

（4） The cash on him was his salary and red-packet money.

5.The estimated street value of the cocaine seized was $33,344.

6.He is 32 years of age, of F. 3 education level.  He had several criminal records but none relating to dangerous drugs.  He was sentenced to DATC for 2 counts of theft in 2009.

7.His solicitor Mr. Yiu submits a urine test report prepared by the Correctional Services Department 4 days after the Defendant was arrested.  He was tested for 5 types of dangerous drugs, including cocaine, all negative.  Mr. Yiu informs me that the Defendant claims it ought to have been positive if conducted 2 days earlier as he had consumed cocaine on the day of arrest.

8.Mr. Yiu also invites me to consider that part of the bulk seized was for his client’s own consumption as he was a drug addict.  I refer Mr. Yiu to his client’s reply in the video-recorded interview for the admission that the bulk was for resale.  There was a huge profit margin of over $20,000 if we put the cost and the estimated street value together.  I regard this claim of partial own consumption inconsistent with the existing evidence.  I stand down the case for Mr. Yiu to take instructions for a Newton Hearing, if any.  Upon return, I am informed that the Defendant does not wish to have a Newton Hearing and he is content with the bare assertion without calling any evidence.  In consequence, I reject his claim of partial own consumption.

9.The Court of Appeal suggests 5 – 8 years’ imprisonment for trafficking 10 – 50 grammes of cocaine (Attorney General v Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLR 370).

Sentencing this Defendant

10.I take 5 years 9 months as the starting point.  After a one-third discount for his timely plea of guilty, the sentence is 3 years 10 months.