HKSAR v. Kam Pak Ming

HCCC 171/2018

[2018] HKCFI 1955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 171 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the Facts

On 21 May 2018, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

This morning, the defendant confirmed his plea and accepted the Summary of Facts.

Briefly, what happened was that the defendant was found sitting in the front passenger seat of a private car, together with the driver at around 2230 hours on 19 July 2017 when the vehicle was parked outside Man Sing Street, Yau Ma Tei. The engine was kept on and the two of them kept glancing around.

Two unmarked police vehicles then stopped in front of and behind the defendant’s car respectively. When the police declared their identity and knocked at the driver’s seat, the driver suddenly drove forward and ramped into the police car in the front. Then the defendant’s car reversed and ramped into the police car behind. The police asked the driver to stop but that was ignored. Again, the defendant’s car ramped into the two police cars. Eventually a police officer smashed the driver’s window with a police baton and another officer removed the car key. The defendant and his companion were then subdued.

Upon a search, two plastic bags containing a total of 48.1 grammes of a solid containing 46.3 grammes of cocaine was found on the floor of the front passenger seat. Cash of HK$22,000 was also found inside the compartment between the driver’s seat and the front passenger seat. Further, one notebook containing suspicious drug transaction account was found inside the defendant’s bag in the front passenger seat.

Under caution, the defendant claimed that the bag of dangerous drugs did not belong to him and it was brought into the car by his companion.

Later, investigation revealed that about a week ago, the defendant helped to purchase the car for his friend and he had asked to borrow it for his use for two weeks.

The defendant now admits that the dangerous drug belonged to him and the drug was for the purposes of unlawful trafficking.

The estimated street value of the drug was about HK$60,000.

Mitigation and the defendant’s background

The defendant is aged 33 and is single. He was born in Hong Kong and has received secondary education. At the time of arrest, the defendant was said to be a motor vehicle technician.

The defendant has got a total of 21 convictions. Two of those were trafficking in a dangerous drug and eight were possession of a dangerous drug. He was last discharged from prison in May 2014 after serving a 4 month term for 5 offences of theft.

Mr Chu, for the defendant, indicated that the defendant’s greatest mitigation is his guilty plea. Mr Chu further explained that the defendant committed the present offence under bad peer influence and his greed to earn quick money. He is now, however, truly remorseful, said Mr Chu. As regards the defendant’s previous records, Mr Chu asked this court not to treat the defendant as a repeat offender as it is clear that the defendant had been trying to stay away from trouble.

In short, Mr Chu urged for a lenient sentence to be imposed on the defendant as far as possible.

Sentencing Considerations

The tariffs for trafficking in cocaine were the same as those for heroin as set out in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370, see AG v Rojas [1994] 2 HKCLR 69.

For trafficking between 10 and 50 grammes of cocaine, a term of 5 to 8 years’ imprisonment is called for. Having considered the facts of this case and for the 46.3 grammes of cocaine involved, I take the view that a term of 7 years and 9 months, that is 93 months in total, is the appropriate starting point. The defendant has got a string of drug related convictions, the earliest being in 2007 and the latest being in 2011. He was sentenced in July 2007 and May 2008 respectively to DATC and to a term of 8 months’ imprisonment for his two trafficking in a dangerous drug offences.

Judging from the relatively light sentences imposed, one could tell that those trafficking offences should not be serious in nature. As regards his possession of a dangerous drug convictions between 2007 and 2011, the defendant was sent to the DATC, was given a probation order and was sentenced to short terms of imprisonment respectively. Given that the defendant’s past trafficking in a dangerous drug convictions were recorded some ten years ago and that his latest theft conviction in 2015 resulted in a suspended term, I am not going to take his past convictions as an aggravating factor which would attract an enhancement of the sentence in this case.

The Sentence

The defendant pleaded guilty at the committal stage. He would be given a one-third reduction for that. Other than his guilty plea, there is nothing which would justify any further reduction in sentence. 93 months reduced by one-third is a term of 62 months. That is 5 years and 2 months.

The defendant is therefore to serve a term of 5 years and 2 months for the charge of trafficking in a dangerous drug to which he has pleaded guilty.