HKSAR v. Lai on Hang

HCCC 34/2019

[2019] HKCFI 2313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 34 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant, Mr Lai On-hang, pleaded guilty to two counts of trafficking in dangerous drugs in the committal proceedings. Both offences are contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars of the 1st count are that the defendant, on the 24th day of March 2018, near Lamp Post No AA8600 on Kwun Tong Bypass, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 2.94 grammes of a crystalline solid containing 2.37 grammes of methamphetamine hydrochloride; 1.20 grammes of a mixture containing 0.77 gramme of cocaine and 0.31 gramme of methamphetamine; and 6.33 grammes of a solid containing 5.77 grammes of cocaine.

The particulars of the 2nd count are that the defendant, on the 24th day of March 2018, on an occasion other than the one stated in 1st charge, near Lamp Post No AA8600 on Kwun Tong Bypass, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 190.9 grammes of a solid containing 166.2 grammes of cocaine.

He is committed to this court for sentence.

Admitted Facts

On 24 March 2018 at about 0133 hours, the defendant was arrested for some traffic offences at the location set out in the 1st count. On body search of the defendant, the police found one tablet of Viagra and the dangerous drugs set out in Charge 1, namely, 4 plastic bags with a total weight of 2.94 grammes crystalline solid inside containing 2.37 grammes of methamphetamine hydrochloride, 3 plastic bags with a total weight of 1.2 grammes mixture inside containing 0.77 gramme of cocaine and 0.31 gramme of methamphetamine, and 7 plastic bags with a total weight of 6.33 grammes of solid inside containing 5.77 grammes of cocaine. When being arrested and cautioned for the offence of trafficking in dangerous drugs, the defendant said that the dangerous drugs were ‘Ice’ and ‘Coke’ and were for his own consumption.

The police also found cash of $16,580 on the person of the defendant.

On a search of the vehicle driven by the defendant, the dangerous drug of the 2nd charge was found, namely, 7 plastic bags with a total weight of 167 grammes of a solid inside containing 145 grammes of cocaine, and a plastic bag with 23.9 grammes of a solid inside containing 21.2 grammes of cocaine. On being arrested for the offence of trafficking in a dangerous drug, the defendant said under caution that the dangerous drug was cocaine.

The estimated value of the total weight of 172.74 grammes of cocaine seized was $213,161.16 in March 2018 while that for the total weight of 2.68 grammes of ‘Ice’ seized was $1,444.52.

Criminal Records

The defendant has 23 previous convictions of which 6 were possession of a dangerous drug and 2 were trafficking in a dangerous drug. He was last convicted of 3 traffic offences on 6 September 2018 for which he was sentenced, inter alia, to a total of 6 weeks imprisonment. He committed the present case while on bail of a case involving 2 traffic offences and a case of possession of a dangerous drug.

Mitigation

The defendant is aged 44 and was born in Hong Kong. He received secondary education and is single but has two sons, who are aged 24 and 13, with his former girlfriend. He was a delivery worker before the offence, earning $12,000 a month.

The counsel for the defendant points out that part of the dangerous drugs was for the own consumption of the defendant, citing in support what the defendant told the police under caution and the urine test report of the defendant on admission to the Correctional Services Department. When the court tells the counsel that according to the authorities the court will only consider such a ground of mitigation on being satisfied that a significant proportion of the dangerous drugs was for the defendant’s own consumption and that the initial view of the court is that the court is not so satisfied. The defence counsel indicates that he will not pursue the matter further but urge the court to exercise its discretion to give some discount to the defendant in this regard.

The defence counsel asks the court to adopt the combined approach for the two kinds of dangerous drugs involved in the present case in computing the sentence. He says that the total amount of dangerous drugs in the present case entails a starting point of about 11 years 3 months imprisonment. He asks the court to take into consideration the 2 months imprisonment which the defendant has served for the traffic offences which the defendant committed together with the present case.

The defence counsel also asks the court not to enhance the sentence in the present case on the ground that the defendant committed the offences while he was on bail of some other offences on the ground that the defendant has already received punishment for those offences and he is facing a sentence of substantial length in the present case.

Sentence

The total amount of ‘Ice’ and cocaine involved in Charge 1 is respectively 2.68 grammes and 6.54 grammes. The amount of ‘Ice’ involved is relatively small. According to the sentencing guidelines for trafficking in ‘Ice’ set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, such an amount of ‘Ice’ alone entails a starting point of about 1-year imprisonment. I therefore agree with the submission of the defence counsel that the court should adopt the combined approach in the sentencing in the present case.

By using this approach, the total amount of dangerous drugs in Charge 1 will be 9.22 grammes of cocaine. According to the sentencing guidelines for trafficking in heroin hydrochloride in R v Lau Tak Ming & Anor [1990] 2 HKLR 370 which are applicable to trafficking in cocaine, for up to 10 grammes of cocaine, the starting point is 2 to 5 years imprisonment. The starting point for trafficking in 9.22 grammes of cocaine will be 2 years 9 months imprisonment.

Charge 2 involves a total of 166.2 grammes of cocaine. According to the sentencing guidelines in Lau Tak Ming, for trafficking in 50 to 200 grammes of cocaine, the starting point is 8 to 12 years imprisonment. The starting point for trafficking in 166.2 grammes of cocaine, is about 11 years 1 month imprisonment.

The court does not accept that a significant proportion of the dangerous drug was for the consumption of the defendant and is therefore of the view that the defendant is not entitled to any discount in sentence in this regard. On the other hand, the defendant committed the present case while he was on bail of, inter alia, an offence of possession of a dangerous drug. The court is of the view that this is an aggravating factor which necessitates an enhancement of the starting point.

Taking this and the circumstances of the case into consideration, the court adopts a starting point of 3 years imprisonment for Charge 1 and 11 years 6 months imprisonment for Charge 2. Giving credit to the defendant for his plea of guilty, the court sentences him to 2 years imprisonment for Charge 1 and 7 years 8 months imprisonment for Charge 2.

In all fairness to the defendant, he should not receive a sentence longer than that he will receive if he has been charged with trafficking of all the dangerous drugs in one single count. The total amount of dangerous drugs in the two charges on the basis of the combined approach is 175.42 grammes of cocaine, which entails a starting point of about 11 years 4 months imprisonment. Taking into consideration the factor of enhancement, it will become 11 years 10 months imprisonment, and after giving discount to the guilty plea, the sentence will become about 7 years 11 months imprisonment.

As the defendant has served 2 months imprisonment for the traffic offences which he committed at the same time as the present case, the court is prepared to give him a discount of 1-month imprisonment. This will result in a sentence of 7 years 10 months imprisonment. The court therefore orders that 2 months of the sentence of Charge 1 is to run consecutively to the sentence in Charge 2. The defendant is to serve a total of 7 years 10 months imprisonment.