HKSAR v. Luk Ho Keung

DCCC 646/2022

[2023] HKDC 1443

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 646 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is 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.

Facts

2.At around 10:10 pm on 9 February 2022, police tried to intercept the defendant at the lift lobby on the ground floor of Sin Yat House. At this juncture, the defendant suddenly fled towards the direction of Chi Yat House and police gave chase. When the defendant reached the lift lobby of Chi Yat House on the ground floor and pushed open the smoke door to enter Staircase No 2 of Chi Yat House, police successfully grabbed hold of the defendant’s shirt and intercepted him.

3.Police saw the defendant then threw out a packet of thing in his right hand. The same was later found to be a transparent plastic bag containing 23.0 grammes of a solid containing 16.8 grammes of cocaine. The defendant was then arrested and cautioned. He was found to have 2 mobile phones in his possession.

4.Average retail price for crack cocaine at the time was HK$1,598 per gramme and the estimated value of the cocaine seized was around HK$36,754.

5.The defendant admits and accepts that he, at the material time, unlawfully trafficked the dangerous drugs in question.

Criminal Record

6.The defendant had 2 previous similar convictions on 21 November 2019 for which he was sentenced to a total of 35 months’ imprisonment. He was last released on 20 August 2021.

Mitigation

7.The defendant is now aged 21. He was 19 at the time of the offence. He was raised by his grandmother and his aunt as his parents separated before he was born. The defendant treats his aunt as his mother because she financially supported the defendant and takes care of him. The defendant’s aunt is married but has no child.

8.It was submitted on behalf of the defendant that he had only seen his father once or twice in his lifetime and his mother was in and out of prison all the time and did not take care of him.

9.The defendant had received education up to Form 4 level. He previously worked as a cargo worker, earning about HK$13,000 a month.

10.It was submitted that the defendant pleaded guilty showing his remorse, and that the reason why he committed the present offence was to earn some quick money to help raising legal fees for his mother’s appeal. The defendant now realises that he is wrong and is very remorseful. He has learned a bitter lesson and is sorry that he has caused his grandmother and his aunt trouble again. He is determined to turn a new leaf.

11.Defence counsel conceded that for trafficking 16.8 grammes of cocaine, following the sentencing guideline in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the appropriate sentencing starting point would be 66 months’ imprisonment. He urged this court to give the defendant one-third sentencing discount by reason of his guilty plea.

Discussion

12.Before sentencing, this court has carefully considered all that was said on behalf of the defendant.

13.Maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life.

14.As conceded by defence counsel, for trafficking 16.8 grammes of cocaine, following the sentencing guideline, the appropriate sentencing starting point is 66 months’ imprisonment.

15.This is a very serious offence and personal background is seldom a mitigating factor. The fact that the defendant committed the offence in order to earn fast money is not a valid mitigating factor.

16.The defendant has 2 previous convictions of similar charges, both from the same occasion in 2019, and he committed the present offence just 6 months upon his release from prison. It is clear that the last term of imprisonment did not deter him from further committing similar offence. On this occasion, the court is going to give him one last chance and is not going to enhance his sentencing starting point by reason that he is a persistent offender. But the defendant should know that this is his last chance and should he come before this court again for a similar offence, he would expect a much heavier sentence.

17.Considering the mitigation done on his behalf, the most valid mitigating factor is that of his own guilty plea, for which he is entitled to full one-third sentencing discount. The defendant is therefore sentenced to 44 months’ imprisonment in the present case.