HKSAR v. Lau Pak San

DCCC 964/2018

[2019] HKDC 803

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 964 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs[1]. Particulars are that he on 18 July 2018 at Muk Chui Street outside Ching Long Shopping Centre, Kai Tak, Kowloon unlawfully trafficked in 5.26 g of solids containing a total of 4.54 g of cocaine.

Summary of facts

2.At around 4:30 pm on 18 July, the defendant and one other male were intercepted by Police officers while seated in the rear passenger seats in a taxi stopped on Muk Chui Street outside Ching Long Shopping Centre.

3.Since the officers saw them acting suspiciously, a body search was conducted on the defendant.  The following items were found in the right front pocket of his trousers:-

(1) 1 transparent re-sealable plastic bag with 17 other transparent re-sealable plastic bags containing cocaine.

(2) 2 tissue papers each wrapped around a plastic bag containing cocaine.

4.The defendant was arrested and cautioned.  Under caution, the defendant claimed that he purchased the ‘coke’ for his self-consumption.

5.Cash of $1,989 and 2 mobile phones were also found on the defendant.

6.A house search was later conducted at the defendant’s residence in To Kwa Wan.  Nothing in connection with the dangerous drugs were found.

7.The bags were later found to contain a total of 4.54 g of the dangerous drug cocaine.  The 5.26 g of solids had an estimated street value of around $6,223.

Previous convictions

8.The defendant has one previous conviction for conspiracy to traffic in dangerous drugs.  He was sentenced on 21 May 2015 in the Court of First Instance to 5 years’ imprisonment.

9.The defendant finished serving that sentence and was released on 29 May 2018.

Mitigation

10.The defendant was born in Hong Kong in September 1996 and is 22 years old.  He was educated up to Form 3 level.  He used to work as a sales and delivery worker earning about $15,000 per month, but was unemployed at the time of his arrest in the present case.

11.The defendant lives with his grandparents, mother and elder sister in a flat in Hung Hom.  His mother and grandfather wrote in mitigation to seek leniency from the court.  The defendant had asked his mother not to attend court for his sentencing because he does not want to see her suffer more heartache.

Sentence

12.The maximum sentence for the offence of trafficking in dangerous drugs on conviction upon indictment is that of a fine of $5 million and imprisonment for life.

13.The sentencing guidelines for heroine laid down in R v Lau Tak Ming and others [1990] 2 HKLR 370 were held to apply to cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.

14.For narcotic contents of up to 10 g, the band of tariff sentence is 2 to 5 years’ imprisonment.

15.An arithmetical application of the tariff to 4.54 g of cocaine would lead to a starting point of 39 months’ imprisonment.  This is the starting point I adopt.

Aggravating factor

16.The defendant committed the present offence just 50 days after his last release from a lengthy term of imprisonment for a similar offence.

17.I find this an aggravating factor and the sentence will have to be enhanced accordingly in order to deter the defendant from re-offending and to protect the public[2].

18.Given the gravity of the nature of the offence, I find that there should be an enhancement of 6 months’ imprisonment.

Self-consumption

19.Although the defendant had, in his video recorded interview, claimed that all the drugs in his possession were for self-consumption, he did not repeat this claim in mitigation.  Counsel for the defendant confirmed that the defendant is not seeking such a discount.

20.As such, there is to be no discount granted on this basis.

Mitigating factor

21.The only mitigating factor is the defendant’s timely guilty plea, for which he is given the full one-third discount.

22.The defendant is, therefore, sentenced to 30 months’ imprisonment.