HKSAR v. Choi Ki Lung

DCCC 655/2021

[2022] HKDC 459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

2.In the evening on 19 March 2021, PC25043 and his teammate were on patrol at No 55, Hoi Yuen Road, Kwun Tong, Kowloon in Hong Kong when he saw the defendant who panicked upon seeing him.  He intercepted the defendant.

3.Upon search of the defendant, one paper bag containing the following items were found in his left front trousers pocket:

(a)  1 transparent resealable plastic bag containing 100 smaller transparent resealable plastic bags containing 13.85 grammes of a solid containing 13.12 grammes of cocaine and a label with the number “100”;

(b)  1 transparent resealable plastic bag containing 58 smaller transparent resealable plastic bags containing 7.9 grammes of a solid containing 7.33 grammes of cocaine and a label with the number “59”.

4.The defendant was then arrested for trafficking in a dangerous drug.  Under caution, he stated that the drugs were for his own consumption.

5.The defendant had 2 mobile phones on him at the time and cash of HK$4,204.80 and RMB 30 on him.

6.Estimated street value of the drugs seized was around HK$40,977.

7.At the material time, the defendant was in possession of the cocaine seized for the purpose of unlawful trafficking.

Criminal Record

8.The defendant has a clear record.

Mitigation

9.The defendant is now aged 32.  He came to Hong Kong in year 2000.  He is a divorcee and lives with his parents, one sister and two daughters.  He has been educated up to Form 2 level in Hong Kong.

10.Prior to the offence, the defendant used to be owner of a small delivery company hiring a small number of employees.  He would earn about $30,000 per month, out of which he would give $10,000 to his parents as household expenses.  It is said that prior to the offence, due to the pandemic, he had to cease business and laid off his employees, sold the lorry and still owe a large sum of debts.  It is under those circumstances that he made the wrong choice, he agreed when his friend asked him to commit the present offence for gain.  He is now deeply remorseful as to what he has done.

11.Defence counsel handed to this court 4 mitigation letters, namely, from the defendant, defendant’s parents and sister, parents-in-law and the pastor from the church for the court’s consideration.

12.It has also been submitted that since the defendant has a clear record and he has entered a guilty plea, he should be entitled to full one-third sentencing discount.

13.Defence counsel also conceded that following the guideline by the Court of Appeal in the case of R v Lau Tak Ming [1990] 2 HKLR 370, with the quantity of cocaine involved in this case, the appropriate sentencing starting point would be around 69 months’ imprisonment.

Discussion

14.Before sentencing, this court has clearly considered all that were said on the defendant’s behalf, including the mitigation letters, as well as the written mitigation submissions.

15.The maximum sentence on conviction upon indictment for this offence is a fine of HK$5 million and imprisonment for life.

16.As conceded by defence counsel, which this court agree, that for the purpose of trafficking of cocaine in the amount in the present case, the appropriate sentencing starting point as stipulated by the Lau Tak Ming case is 5 years and 9 months’ imprisonment

17.Trafficking in a dangerous drug is a very serious offence and personal background of the defendant is seldom a valid mitigation factor.  Whilst this court appreciates the immense financial difficulty faced by the defendant due to the pandemic, committing this serious offence for monetary gain is not a valid mitigating factor. 

18.Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea of which he is entitled to full one-third sentencing discount.

19.He is therefore sentenced to 3 years and 10 months’ imprisonment for the present offence.