HKSAR v. Lui Kam Sing

DCCC 710/2017

[2018] HKDC 799

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 710 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. The drugs are 2.23 grammes of a crystalline solid containing 2.2 grammes of a methamphetamine hydrochloride and 0.03 grammes of a solid containing methamphetamine.

2.The facts are straightforward.  The defendant was stopped and searched at the Lok Ma Chau Control Point on 7 June last year at about 3 am.  In his rucksack in two different locations, Customs officers found this quantity of “Ice”.  The defendant made admissions under caution of taking “Ice” with his friend and said that friend put “Ice” in his rucksack.  Amongst other items found in his rucksack, the defendant had a sizeable amount of cash as well as five mobile phones.  Today, he has admitted to trafficking that quantity of “Ice”.

3.The defendant is 57 years old.  He is not a man with a clear record.  He has six previous convictions of which two are drug-related.  He has a possession-of-dangerous-drugs conviction from 1995, but he has a recent trafficking conviction in 2013 when he was sentenced to 5 years and 8 months in the High Court.  In his antecedents, he has claimed to be married and a seafood wholesaler.  

4.In mitigation, he has nothing to say.  That is most likely because he is unrepresented today.  In his first appearance in the plea court here, he was represented by the Legal Aid Department.  He indicated he would plead guilty.  However, on the plea date, he was unrepresented and told the court that he had changed his mind.  Therefore, this case was adjourned.  On a mention date, he then had private representation who told the court that he was intending to plead guilty again.  Therefore, this case was adjourned to today.  Not long after that date, the defendant became unrepresented again.  That is why today he appears on his own.  He was prepared to act for himself and has now explained why he had changed his mind on the 1st plea date.

5.I did consider whether he still deserved a discount of one-third for his plea.  After considering the Court of Appeal case of HKSAR v Ngo Van Nam CACC 418 of 2014, the defendant’s explanation is that he made the mistake of listening to other inmates at Lai Chi Kok who gave him some bad “expert legal” advice, and he decided that he was going to plead not guilty.  However, I do take into account that he came to his senses before a trial date was given and set down.  So I will not deprive him of his one-third discount on this occasion.  If this case had been adjourned for trial and the court’s diary taken up with trial dates, then I would have considered a 20 to 25 per cent discount only.

6.This takes me to what starting point I should consider.  I take into account the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  There, the Court of Appeal determined.  When trafficking up to 10 grammes of “Ice”, the court should consider between 3 to 7 years’ imprisonment.  Mathematically speaking, 2.5 grammes of “Ice” will attract a 4 years’ starting point.  Here, the dangerous drugs, the “Ice” is 2.23 grammes.  

7.I have taken into account the facts of this case and how the drugs were found.  I have also taken into account the defendant’s admissions to the Customs officer and his full co‑operation at the time. 

8.Defendant, please stand up.  Therefore, I will take a starting point of 3 years and 8 months.  As I have said, the defendant will get a discount of one-third for his plea.  After that discount is applied, the defendant will be sentenced to 2 years and 6 months for this charge.  Do you understand that sentence?  

DEFENDANT: Understand.

(Discussion re disposal of exhibits)

9.Yes.  Sorry, I have made a mistake.  The overall sentence has always been 2 years and 6 months but the starting point should not have been 3 years and 8 months as I just said.  It should have been 3 years and 9 months.  When you take one‑third off 3 years and 9 months, you get 2 years and 6 months.  Do you understand?

DEFENDANT: Yes.