HKSAR v. Li Kwan

DCCC 518/2023

[2024] HKDC 755

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 518 OF 2023

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REASONS FOR SENTENCE

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1.Mr Li pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 3 February 2023, near Lamppost No N6650, Kwong Fuk Road, Tai Po, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.06 grammes of a solid containing 4.88 grammes of cocaine.

Facts admitted by Mr Li

2.On 3 February 2023, at about 1758 hours, Mr Li was standing near Lamppost No N6650 at Kwong Fuk Road, Tai Po.  When a police constable on patrol PW1 approached Mr Li, the latter immediately put his right hand into his right back pocket of his trousers, turned around and left.  PW1 intercepted Mr Li for enquiry.

3.Upon search, PW1 found inside the left inner pocket of Mr Li’s jacket one plastic bag containing 13 plastic bags containing a total of 6.06 grammes of a solid containing 4.88 grammes of cocaine.  PW1 arrested Mr Li for the offence of “Trafficking in a dangerous drug”.  Under caution, Mr Li said the cocaine was for his self-consumption.  PW1 also found on Mr Li cash to the tune of $39,518.50 and one mobile phone.  These were seized together with the cocaine as exhibits.

4.In a VRI, Mr Li stated the following under caution:-

(a)  He worked as a construction worker and lived in Tai Po;

(b)  He was arrested while on his way to a store;

(c)  The substance found on him was cocaine and he had a habit of consuming cocaine;

(d)  He bought the cocaine from someone called “Ah Ming” near Pak Shing Street at around 1730 hours on 2 February 2023; he bought it in bulk for his self-consumption; each small pack cost $450; he did not have the contact means of Ah Ming;

(e)  He mixed the cocaine with tobacco for smoking and he consumed cocaine inside a park near his residence;

(f)  The last time he consumed cocaine was in late January 2023;

(g)  The cash seized from him was mainly composed of his salary received in early February 2023; and

(h)  He could not recall the contact number of his employer and the address of the construction site where he received the alleged salary from his employer.

5.The estimated street value of the cocaine was around $5,412.

6.Mr Li now admits that at the material time, he unlawfully trafficked in the seized dangerous drug.

Criminal record

7.Mr Li has two previous convictions none similar.

Antecedents

8.Mr Li is aged 27 (26 at the time of the offence), educated to F3 level, was a construction worker at the time of arrest.  Mr Li is single and lived with his working parents (both in their 60s)  and his younger brother (aged 25)  in Tai Po.

Mitigation

9.Mr Edward Ng of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Li.  The following is a summary of the mitigation submissions.

10.Mr Li committed the present offence whilst on bail for another matter.

11.Prior to the current offence, Mr Li was in stable employment as a construction worker earning about $1,200 daily.

12.Mr Li has been sentenced previously to DATC in 2021.  Mr Li first tried cocaine when he was 20 years old.  Before the present offence, he used to consume one gram daily, which cost him $900 each time.  He relapsed to dangerous drugs because the friends he met in DATC lured him back to the habit after his release.  Mr Li now realizes drugs would only ruin his life and he promises he would stay away from drugs from now on.

13.The sentencing guidelines for heroin are applicable to cocaine: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, 72.  The sentencing guidelines for trafficking in heroin are enunciated in the landmark case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370, 387.  The same has been affirmed in the case of HKSAR v Abdullah [2009] 2 HKLRD 437, 440.

14.In Lau Tak Ming, the tariff laid down for up to 10 grammes of heroin is between 2 and 5 years’ imprisonment.

15.The quantity of cocaine in the current case is 4.88 grammes.  Arithmetically, the starting point should be 41.568 months.

16.Mr Ng referred to HKSAR v Pau King Kong [2013] 3 HKLRD 676, 683, at para 27.

17.Mr Ng also referred to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, 1126, at para 19.

18.Mr Li pleaded guilty at the earliest opportunity.  On his arrest, he was cooperative with the police by answering all questions raised during the interview.  He has had more than a year to reflect on his wrongdoings and is deeply remorseful for breaking the law again.

19.Mr Ng urges the court to exercise its discretion to give some reduction in sentence for Mr Li’s self-consumption.

20.Mr Li pleads for the court’s leniency.

21.Mr Ng submitted on Mr Li’s behalf a mitigation letter written in Chinese (with English translation)  by Mr Li’s mother.  The contents are generally that Mr Li now knows that he has made a big mistake and is remorseful; that a lenient sentence is asked for so that Mr Li may turn over a new leaf.

22.After some exchanges between the court and Mr Ng, and after Mr Ng has taken instructions from Mr Li, Mr Ng told the court that:-

(a)  Mr Li will not give evidence to support his claim that the drug seized was for his own consumption and for sharing with friends;

(b)  Mr Li will not insist that part (2.88 gramme)  of the drug was for his own consumption; and

(c)  Mr Ng will not make further submissions on Mr Li’s claim that part of the drug was for sharing with friends.

Sentence

23.Prior to the present hearing, prosecution informed the court by letter (letter dated 7 May 2024)  that there is another case DCCC  215/2023 (TP/RN 22030229)  involving Mr Li on two charges of road traffic offences that is due to be heard for plea and sentence on 28 May 2024.  It was revealed in the letter that Mr Li committed the offence in the present case whilst on court bail for the other case.

24.Mr Ng has informed the court in his written mitigation that DCCC 215/2023 involved two other defendants as well; and he has further asked if the present case might be placed before the judge in that case for sentence together.

25.Noting the completely different nature of the two cases, I have decided to sentence Mr Li today but will direct that the Reasons for Sentence herein be copied to the sentencing judge in DCCC 215/2023 for his/her information.

26.In accordance with the sentencing tariff, I adopt an initial starting point of 41 months’ imprisonment.

27.From the circumstantial evidence including the presence of a large amount of cash on him and the inability to elaborate on the source of the money to the police, I found Mr Li was an actual dealer of the drug, not simply a courier or someone who shared the drug with friends.  For this factor and in line with HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, 320, at para 61, and for the aggravating factor that Mr Li committed the offence whilst on bail, I shall enhance the initial starting point by 4 months.

28.Also from the circumstantial evidence including the negative urine test report submitted by the prosecution, I do not find the claim of self-consumption made out.  I will not therefore reduce the sentence on this ground.

29.Mr Li pleaded guilty in a timely manner.  He shall be entitled to the full 1/3 discount in sentence.  I do not detect any other mitigating factors of weight to justify any further reduction in sentence.

30.Lastly, I do not see the resulting sentence as being too harsh.

(Mr Li, please stand)

31.The sentence is 30 months’ imprisonment.