HKSAR v. Lau Cheuk Hang

DCCC 690/2024

[2025] HKDC 964

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 690 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 2 charges of offences:-

(a)  Possession of apparatus fit and intend for taking dangerous drugs, namely ICE.

(b)  Trafficking dangerous drugs, namely 7.85 g of a solid containing 7.22 g of cocaine.

Summary of facts

Charge 1

2.At about 0110 hours of 29 January 2024, the police stopped the taxi while the defendant was a back seat passenger.  He dropped a box like object onto the floor next to his feet.  It was found out there were 2 glass tubes and one plastic straw inside the cigarette box.  The Government chemist confirmed that it contained 0.04 g of a solid containing ICE was found from the glass tubes and the plastic straw.

3.Under caution, the defendant admitted that he had used the apparatus inside the box.

Charge 2

4.During a body search, at the front of the Defendant’s waist area, between the Defendant’s underpants and pant, it was found:-

(i)  one transparent resealable plastic bag containing 26 smaller transparent resealable plastic bags, in which contained a total of 7.85g of a solid containing 7.22g of cocaine

5.Under caution, the Defendant said that he intended to sell the drugs to other.

Further Investigation

6.The Defendant had 2 mobile phones and $362 with him.

7.The estimated street value of the cocaine seized was about HK$9,660.36.

Criminal record

8.The Defendant had one criminal record of wounding[1] and was sentenced to 9 months’ imprisonment in 2020.

Background of the Defendant

9.He is now 29 years old.  He is the only child of the family and lives with his parents prior to the present arrest.

10.The Defendant dropped out from school (Form 3)  and worked as a construction site worker with a monthly salary of $12,000.

11.He started to take drugs at the age of 17 and spend about $2,000 per month on consumption of drugs.  In 2023, the defendant was in steady relationship with his Thai girlfriend.  He successfully quit his drug habit, but relapsed in 2024.  He committed the present offence to earn quick money to support their living after they get married.

12.In his mitigating letter to this Court, he said that he is deeply remorseful.  His girlfriend comes to Hong Kong every month to visit him, including today.  She provides a steady and reliable presence in his life.  She is a source of strength, support and stability to him.  He is determined to stay straight after his release from prison.

Sentence

Charge 1

13.The maximum sentence for Charge 1 is 3 years imprisonment and a fine at level 3.

14.It concerns 2 glass tubes and one plastic straw inside the cigarette box, the Defendant said that he used those apparatuses for taking ice.

15.I take 3 months as the starting point, given ¹/₃ discount, it comes down to 2 months.

Charge 2

16.As to Charge 2, it involved a narcotic content of 7.22g of cocaine, as such, the Herry Jane Yusuph[2] case’s 6 steps approach in sentencing is applicable.

Step 1: The relevant guideline

17.According to HKSAR v Huang Ruifang[3] that for the quantity of the narcotic content of 7.22g of cocaine in the present case, it falls into the sentencing bracket of 2 to 5 years imprisonment

Step 2: the defendant’s role and culpability

18.The role and culpability of the trafficker is an important consideration in identifying the starting point for this offence.

19.The defence said that the Defendant was a courier.  I disagree.

20.As said in HKSAR v Islam Shafiqul[4], McWalters JA held that:-

“(the respondent)  asserted that the appellant’s role was more than that of a mere courier. Determining whether the appellant had a more culpable role in the commission of this offence depends on what can be inferred from the Summary of Facts which he admitted and which was used for his sentencing.” (from para 63 of Henry Jane Yusuph case ).

21.In the present case:-

(a)  The apparatuses in Charge 1 were for the consumption of ice.

(b)  As to charge 2, the defendant was in possession of 26 small packet of cocaine. I have looked at the photos which showed the 26 resealable plastic bags which were all in the same size and each contained dangerous drugs. It is clear to me that they were ready for re-distribution and for resell.

(c)  The Defendant said under caution that he intended to sell the drugs to others.

22.As said in paragraph 64 of the judgement of Herry Jane Yusuph’s case “actual and direct trafficking of dangerous drugs to others on the street is more serious than where a defendant’s purpose cannot be proved or explained”.

23.From the available evidence in the Summary of Facts before me, I conclude that he is a direct trafficker.  He will be sentenced as a direct trafficker.

24.In such circumstances, the notional starting point should be enhanced by 6 months in view of his role and culpability.

Step 3: The relevant band within the guideline

25.The starting point of 7.22g of cocaine attract a sentence of 4 years 2 months.

Step 4: Aggravating factor

26.I agree with the defence there is no aggravating factor in the present case.

Step 5: Mitigating factor

27.The Defendant committed the present offence due to financial circumstance.  It was clear from the case of HKSAR v. Herry Jane Yusuph[5] that personal circumstances account for little in sentencing.  Otherwise, it will send a wrong message to the public especially those drugs syndicate.  Nonetheless, the defendant is entitled to ¹/₃ discount of his guilty plea.

28.As such, I take the starting point of 4 years and 2 months and enhance the sentence by 6 months to reflect his role and culpability.  The total sentence arrives at 4 years 8 months, that is 54 months, given 1/3 discount, it comes down to 36 months.

Step 6: Totality

29.As Charge 1 added to the culpability of Charge 2, the Defendant used the apparatus to consume ICE, while the drug in Charge 2 is COCAINE.  They are separate and distinct offences, in such circumstances, I consider to order one month imprisonment from Charge 1 to run consecutively to Charge 2 is appropriate.

	After 1/3 discount	Order
Charge 1	2 months	1 month to run consecutively to Charge 2
Charge 2	36 months

30.The total sentence for the 2 charges is 37 months (36 + 1).

31.The final stage of the sentencing process is to stand back and look at the overall sentence passed to make sure that it is fair and just.  Taking into account of the circumstances of the two offences and the submission on behalf of the Defendant, I conclude that the sentence is appropriate and is not out of proportion to the Defendant’s overall criminality.

Sentence

32.The Defendant is order to serve a period of 37 months, that is 3 years and 1 month imprisonment.