HKSAR v. Lai Hiu Fung

DCCC 1045/2021

[2022] HKDC 1290

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1045 OF 2021

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REASONS FOR SENTENCE

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1.Mr Lai pleaded guilty before me to two charges of Trafficking in dangerous drug(s), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that he, on 15 July 2021, near Lamppost No GE2077, Sha Tin Tau Road, Tai Wai, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1.94 grammes of a solid containing 1.62 grammes of cocaine.

3.Particulars of Charge 2 are that he, on the same day, at Room 1D, No 1K Lei Uk Tsuen, Tai Wai, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 18.37 grammes of a solid containing 15.42 grammes of cocaine and 78.9 grammes of cannabis in herbal form.

Facts admitted by Mr Lai

4.On 15 July 2021, at about half-past seven in the evening, police intercepted Mr Lai in the street in Tai Wai.

5.Upon search, police found from Mr Lai’s left front trouser pocket 2 resealable chewing gum packaging containing a total of 14 transparent resealable plastic bags containing 1.94 grammes of a solid containing 1.62 grammes of cocaine (E1).  Under caution, Mr Lai said it was “coke” with meant cocaine.

6.Mr Lai was arrested for trafficking in a dangerous drug.  Under caution, he admitted he had received $1,000 to help someone deliver the drug.

7.Mr Lai had on him two iPhones and cash of $120.

8.About 10 minutes later, police officers took Mr Lai back to a flat in Lei Uk Tsuen the key to which Mr Lai had.  There, house search revealed the following items:-

(a)  Behind the refrigerator there was one white paper bag containing:

(i)  Two electronic scales;

(ii)  8 packs of empty small resealable plastic bags; and

(iii)  One blue plastic box containing 129 transparent resealable plastic bags containing 18.37 grammes of a solid containing 15.42 grammes of cocaine (E2); and

(b)  Beside the bed there were one vacuum sealer and one orange plastic bag containing:

(i)  One transparent resealable plastic bag containing 78.9 grammes of cannabis in herbal form (E3); and

(ii)  Two bundles of empty tea leaf plastic bags.

9.Under caution, Mr Lai admitted that E2 and E3 were cocaine and cannabis respectively and he would deliver them upon receiving an order.

10.In a cautioned VRI conducted the next day, Mr Lai admitted:-

(a)  When he was intercepted, he had just taken E1 from the flat and was on his way to deliver it to Sham Shui Po upon receiving an order; he planned to sell each packet for $300;

(b)  The scales and empty resealable plastic bags found in the flat were for packaging drugs; and

(c)  He did not have a drug habit and had trafficked in drugs to earn quick money.

11.The estimated street value of the cocaine found (E1 and E2)  was $27,804.  The estimated street value of the cannabis found (E3)  was $16,096.

Criminal record

12.Mr Lai has one previous conviction for possession of dangerous drug in March 2021 for which he was placed on probation for 18 months.

Antecedents

13.Mr Lai is aged 23 (22 at the time of the offences), graduated from Yi Jin Diploma programme.  He had worked as a warehouse clerk.  He used to live with his mother and younger sister.

Mitigation

14.Ms Cherry Hui of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lai.

15.Mr Lai was born in the Mainland and came to settle in Hong Kong in 2001.  He is single.  He had been unemployed for 2 weeks before he was arrested and detained.

16.His parents are in their 50s and are both working.  His younger sister is a student aged 19.  Mr Lai committed this offence whilst under probation. The probation officer visited Mr Lai for over 10 times during the latter’s detention.  The probation order lapsed in September 2022.

17.Mr Lai committed the offence because he wanted to earn quick money to alleviate the family financial burden.  Mr Lai is deeply remorseful and asks for one more chance.  He promises not to re-offend.

18.The tariff sentence for trafficking in 10 to 50 grammes of cocaine is a term of 5 to 8 years (R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69).

19.The sentence for trafficking in below 2,000 grammes of herbal cannabis may be up to 4 months’ imprisonment (HKSAR v Chor Lui, HCMA 535/2001).

20.Mr Lai pleaded guilty and is entitled to receive a 1/3 discount.  He has co-operated with the police throughout and he asks for leniency from the court.

21.Ms Hui urges the court to impose wholly or partially concurrent sentences having regard to totality.

Sentence

22.Needless to say, trafficking in a dangerous drug is one of the most serious and most prevalent offences in this jurisdiction.  Condign and deterrent sentences are called for.

23.The Court of Appeal has laid down guideline sentences for different types and weights of dangerous drugs.  I need not repeat them.

24.For the cocaine, I shall certainly consider the total weight from the two charges.

25.Under Charge 2, there is the complication of the presence of a cocktail of drugs.  According to the Court of Appeal in HKSAR v Chan Yuk Leong, CACC 318/2013, a court when sentencing an offender for trafficking in a cocktail of drugs should note the dual aggravating factors, namely (1)  the ability of the trafficker to cater to a wider market and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note in this case that the two types of drug under Charge 2 were stored quite separately though under the same roof.

26.In HKSAR v Cheung Wai Man, CACC 258/2017, at para 46, it was said that “as a general rule where the types of dangerous drugs are similar in potency the “combined approach” would be preferred, whereas the “individual approach” may be better suited for cases where the types are disparate in quantity and potency.”

27.Here, we have 15.42 grammes of cocaine (or 17.04 grammes of cocaine if the drug under Charge 1 is added)  and only 78.9 grammes of herbal cannabis (a relatively small amount of herbal cannabis).  In terms of both quantity and potency, the two types of drug are disparate.  I am therefore of the view that the individual approach is to be preferred.

28.For the cocaine, a straightly arithmetical approach for the total amount under both charges would render a starting point of 66.336 months.

29.To cater for the presence of the herbal cannabis, I shall adopt a global starting point for all of the drugs in this case of 67.5 months, with totality factored into the calculation.

30.Mr Lai pleaded guilty in good time earning for himself the full 1/3 discount.  There are no other mitigating factors of weight to justify any further discount.

31.The individual starting points and individual sentences are as follows.

(Mr Lai, please stand)

32.For Charge 2, the starting point is 66 months and the sentence is 44 months’ imprisonment.

33.For Charge 1, the starting point is 27 months and the sentence is 18 months’ imprisonment.

34.Lastly, I order that one month of the sentence on Charge 1 do run consecutively to the sentence on Charge 2 making an aggregate sentence of 45 months’ imprisonment[1].