HKSAR v. Lau Wesley (also known as Lau Chung Hing)

DCCC 22/2020

[2020] HKDC 752

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 22 OF 2020

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REASONS FOR SENTENCE

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1.The defendant LAU Wesley (also known as LAU Chung-hing) pleaded guilty to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of the charge read as follows:-

“LAU Wesley (also known as LAU Chung-hing), on 17^th day of September 2019, at Lok Ma Chau Control Point, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 23.9 grammes of a solid containing 16.1 grammes of cocaine.”

Summary of Facts

3.In the evening of 17 September 2019 the defendant presented himself for departure clearance at the Lok Ma Chau Control Point.  He was stopped by the Immigration staff.  At around 11:12 pm Customs officer CO 16263 conducted a body search on him and found inside his right sock 1 piece of tissue paper wrapping 1 plastic bag containing a total of 23.9 grammes of a solid containing 16.1 grammes of cocaine.  He admitted under caution that the drug belonged to him and he bought it for HK$9,000.  He intended to bring the drug to mainland China for self-consumption and to share with friends.  He had HK$61.4 cash and 1 mobile phone on him at the time of arrest.  The estimated street value of the cocaine found on the defendant was HK$30,161.8.

Background of Defendant

4.The defendant is now 45 years old, born in the Philippines in 1975. He came with his parents to settle in Hong Kong in 1986.  He completed Form 2 education in HK.  He got married in the Mainland in 2012 but divorced recently. He had been an odd job worker since dropping out of school at the age of 15-16.  He had been working as a technician in an engineering company since November 2018.  He had a girlfriend living in Shenzhen before his arrest.

5.The defendant has an appalling criminal record.  He was first convicted of Possession of DD in 1996 when he was only 20 years old.  Since then he had been in-and-out of prison, with no less than 30 convictions in his record, 6 of which were drug related, but no trafficking offence.  He had been sentenced to DATC twice.  His last conviction was for “Theft – Shoplifting” in June 2020 for which he was sentenced to 6 months’ imprisonment.

Mitigation

6.According to Mr Liu who represents the defendant in this case, the defendant had been an addict for a long time.  On the day in question he managed to obtain the cocaine in question at a very cheap price.  He was elated and intended to consume it with his girlfriend to celebrate her birthday, which was due the next day.  He had never been engaged in commercial trafficking of DD and had no intention to do so on this occasion also.

7.Mr Liu referred me to 3 authorities.  HKSAR v Abdallah [2009] 2 HKC 197 re-affirms the guidelines on sentencing in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 is applicable to the present case.  HKSAR v Wong Suet Hau & Anor[2002] 1 HKLRD 69 and HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 provided guidance as to how a sentencing court should approach the issue of “social trafficking”.

Sentence

8.Trafficking in 16.1 grammes of cocaine falls within the 10-50 grammes bracket, attracting a tariff of 5-8 years (HKSAR v Abdallah Anwar Abbas[2009] 2 HKC 197 and AG v Pedro Nel Rojas unrep. CACC 15/1993).

9.Given the long track record of the defendant’s criminal record and drug addiction history, and the circumstances of his arrest, I accept that a substantial part of the drugs he was carrying was for his own-consumption with some to be shared with his girlfriend.

10.In SJ v Chan Chun Fai [2011] 3 HKLRD 116, the appellant was caught leaving Hong Kong for Macau with 12.85 grammes of ice in his possession. He pleaded guilty to trafficking on the accepted basis that the drug was wholly for his own consumption.  In allowing the application for review of sentence, the Court of Appeal reduced the starting point of 7 years by 25% to take account of the factor of self-use.  In HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450 (at page 456), the Court of Appeal agreed and adopted the Judgment of Yeung VP in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121) that “when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point.”

11.Having taken all relevant matters into consideration, for the present offence I adopt a starting point of 5 years, and reduce it by 20% to 4 years for the self-consumption factor.  The sentence is further reduced by 1/3 for the guilty plea.  The defendant is sentenced to 32 months’ imprisonment.

12.I understand that the defendant is currently serving a 6 months’ imprisonment for Theft (Shoplifting) in KCCC 1138/2020.  This case is completely different and separate from the present case under consideration.  I order that the 32 months’ imprisonment in the present case be served consecutively to the sentence in KCCC 1138/2020.