HKSAR v. Kwok Ching Lam

DCCC 69/2020

[2020] HKDC 602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 69 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 17.3 grammes of a solid containing 14.6 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 11:36 p.m. on 3 October last year the defendant was intercepted at the Customs Departure Hall of the Hong Kong Macau Ferry Terminal. 

3.Upon search the cocaine was found inside a can of potato chips the defendant was carrying.  The defendant was also found in possession of one mobile phone; HK$61.10; RMB190 and a ferry ticket to Macau.   

4.The estimated street value of the cocaine was around $17,680.60.

Mitigation

5.In passing sentence, I have carefully considered the written and oral submissions of Miss Lai, including that the defendant committed the offence to earn easy money after being lured by friends into getting involved with drugs and that he is now determined to turn a new leaf by continuing his studies[2]. 

6.I have read the mitigation letter written by the defendant’s mother in which she writes about her difficult life raising three young children and blames herself for not devoting more time to looking after her sons.  The defendant’s mother is in court today showing support for her son.  I also note two friends of the defendant have also attended court to show their support. 

7.I take into account the defendant is 21, 20 at the time of the offence, and has no previous convictions for dangerous drug offences. 

8.The defendant does however have convictions in 2016 for criminal damage and misleading a police officer for which he was first placed on probation.  In breach of the probation orders the defendant was sentenced to detention in a Detention Centre. 

Guidelines

9.The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

10.On a purely arithmetical approach a starting point of just over 5 years and 4 months’ imprisonment would be appropriate for trafficking in 14.6 grammes of cocaine. 

11.Taking into account the defendant’s young age and that he has no previous convictions for dangerous drug offences, I adopt a slightly lower starting point of 5 years and 3 months’ imprisonment. 

International element

12.The exportation of cocaine adds an international element to the offence and is an aggravating feature of sentence. 

13.In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[5].

14.In HKSAR v Choi Chun Wo, the Court of Appeal stated:[6]

“However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent”.

15.The court in HKSAR v Choi Chun Wo held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

16.I am satisfied for exporting 14.6 grammes of cocaine to Macau the starting point should also be enhanced by 3 months to 5 years and 6 months’ imprisonment.

17.Under caution the defendant said the cocaine was for self-consumption.  Miss Lai confirms that the defendant admits all the cocaine was for trafficking.

18.Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 8 months’ imprisonment. 

19.The defendant is convicted and sentenced to 3 years and 8 months’ imprisonment.