The defendant, Lam Ka-fai, pleaded guilty to a charge of trafficking in a dangerous drug and admitted the facts pertaining to the charge before Mr Daniel Tang, magistrate, on 27 September 2021. He confirms his plea of guilty and admission of the Summary of Facts before me today.
I convicted the defendant on his own plea and admission.
The Facts
The Summary of Facts dated 31 August 2021 admitted by the defendant reads:
“1. On 14 October 2020, police mounted an anti-narcotics operation outside Ground Floor, Un Shing House, Un Chau Estate, Cheung Sha Wan. At about 2309 hours on the same day, the defendant was seen coming out from Un Shing House and walked towards a white private car parked outside Un Shing House. Subsequently, the defendant was intercepted.
2. At about 0002 hours on 15 October 2020, the defendant was escorted back to his residential unit at Room 1014, Un Shing House, Un Chau Estate, Cheung Sha Wan (“the Unit”) for a search.
3. Upon search, among other things, the following items were found from a plastic drawer located inside a store room of the Unit:
(i) One plastic bag containing 23.5 grammes of a solid containing 22.4 grammes of cocaine (Exhibit 3).
(ii) One plastic bag containing 23.9 grammes of a solid containing 22 grammes of cocaine (Exhibit 4).
(iii) One plastic bag containing 23.9 grammes of a solid containing 22.4 grammes of cocaine (Exhibit 5).
(iv) One plastic bag and 20 plastic bags containing a total 3.51 grammes of a solid containing 3.27 grammes of cocaine (Exhibit 6).
(v) One plastic bag and 5 plastic bags containing a total of 0.86 grammes of a solid containing 0.79 grammes of cocaine (Exhibit 7).
(vi) Numerous empty transparent resealable bags (Exhibit 9).
(vii) Two electronic scales (Exhibit 10).
(viii) A pair of scissors (Exhibit 11).
4. The aggregate amount of dangerous drugs found at the Unit was a total of 75.67 grammes of a solid containing 70.86 grammes of cocaine.
5. The said store room of the Unit was originally locked when the police conducted the search. It was the defendant who told the officer that the key to the said store room was located inside the drawer of a cabinet in the living room, then the officers gained access to the said store room after retrieving the key.
6. The defendant was arrested and cautioned. Under caution, the defendant admitted he purchased the drugs found at the Unit for self-consumption and asked for a chance.
7. In the subsequent video-recorded interview conducted, the defendant under caution stated, inter alia, that:
(i) The store room where the dangerous drugs were found was locked as usual and he was the only person who had the key to the store room.
(ii) He confirmed Exhibits 6 to 7 were found from the store room while he had no comment on Exhibits 3 to 5.
(iii) The empty resealable plastic bags (Exhibit 9) were used for packing the cocaine to carry around.
(iv) The two electronic scales (Exhibit 10) were used for weighing dangerous drugs to avoid overdose.
(v) The scissors (Exhibit 11) were used to divide cocaine into smaller piece for easier carriage.
8. In October 2020, the estimated street value of the cocaine involved in the charge was between HK$104,197 (in powder form) and HK$178,354 (in crack form).
9. The defendant admits and accepts that he was knowingly in possession of the subject dangerous drug for the purpose of trafficking.”
Antecedent
The defendant was born in April 1992 and is now 30 years old. Locally born, he received education up to Primary 6. He is married and he worked as a construction site worker earning roughly about $20,000 at the time of the offence.
The defendant has one previous record of common assault, which was recorded against him in 2010.
Mitigation
Ms Lam, counsel for the defendant, submits that applying the tariff in HKSAR v Lau Tak Ming [1990] 2 HKLRD 370, for trafficking a quantity between 50 and 200 grammes of cocaine, the sentencing tariff should be in the range of 8 to 12 years’ imprisonment. For the quantity of 70.86 grammes of cocaine in the present case, the sentence should be around 102.67 months of imprisonment. Ms Lam cites HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and submits that instead of adopting an arithmetic and discretionless approach to sentencing, this court should adopt a discretionary approach based on the gravity of the offence (as principally in the nature and quantity of the dangerous drugs concerned) and the role and culpability of the defendant.
Ms Lam submits in mitigation that the defendant was a drug addict of cocaine for two years and he committed the offence because of indebtedness. He was lured to commit the offence for quick money of $1,500 and a packet of drugs of about 4.5 grammes for his self-consumption, namely, Exhibits 6 and 7. Ms Lam submits that the defendant’s role was that of a courier and out of 70.86 grammes of cocaine, 66.8 grammes of cocaine were for the purpose of trafficking and 4.06 grammes were for self-consumption, that is, 5.72 per cent. Ms Lam submits that although the portion of cocaine for self-consumption falls short of significant proportion, this court still has a discretion to award a discount from the starting point taken for sentence to reflect this factor.
Ms Lam submits that the defendant was very cooperative after arrest as shown in paragraph 5 of the Summary of Facts. She submits that in view of the defendant’s plea of guilty, his role, his full cooperation after arrest, a small quantity of the dangerous drugs were for his self-consumption, he should be given a little more than one-third discount to reflect all these factors.
Ms Lam submits that the defendant wants to reunite with his wife as soon as possible and he asks for a lenient sentence.
Consideration
I have considered the facts of this case, the nature and quantity of the dangerous drugs concerned and all the matters urged on the defendant’s behalf by Ms Lam.
If an arithmetic approach were to be adopted, the 70.86 grammes of cocaine would call for a starting point of 102.67 months of imprisonment as Ms Lam rightly submitted. Ms Lam is right to submit that in applying the tariff as set down in Lau Tak Ming, the sentencing court should bear in mind the gravity of the offence as principally reflected in the nature and quantity of the dangerous drugs concerned and the role and culpability of the defendant.
Taken into consideration the fact that the offence committed by the defendant concerned 70.86 grammes of cocaine, his role was that of a courier and he agreed to be a courier for a monetary reward of $1,500 and a small quantity of cocaine was for his self-consumption out of the bulk of cocaine he agreed to traffic, I am prepared to adopt a lower starting point of 8 years and 3 months, that is, 99 months’ imprisonment.
The defendant is entitled to one-third reduction for his guilty plea, that brings the sentence down to 5½ years’ imprisonment, that is, 66 months’ imprisonment.
I accept that the defendant cooperated with the police by telling the police where the key to the store room was located. However, I am not prepared to give an additional reduction over and on top of the one-third reduction. I am sure the police would have no difficulty to break into the locked store room without the help of the defendant. I also note that the defendant did not tell the police the truth when he said under caution that he purchased the drugs found at the Unit for self-consumption. Apart from the guilty plea of the defendant, I can see no other mitigating factors which can further reduce the sentence.
Sentence
For the reasons given, I sentence the defendant to 5½ years’ imprisonment, that is, 66 months.