HKSAR v. Lau Wai Chung

DCCC315&458/2009 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 315 AND 458 OF 2009

----------------------

----------------------

---------------------------------------

Reasons for Sentence

---------------------------------------

1. The Defendant pleads guilty to one count of possession of dangerous drug (Charge 1) and another count of trafficking in a dangerous drug (Charge 2).  On 23 January 2009, the Defendant was stopped and searched by the police at 2.11 am when he was a passenger in a taxi.  Upon search, a transparent resealable plastic bag containing suspected dangerous drug was found in the Defendant’s right front trousers pocket.  Two resealable plastic bags containing suspected dangerous drug were also found from the Defendant’s underpants.  Upon verbal caution, the Defendant admitted that those drugs were “coke” and the Defendant claimed that he bought them for $5,500 for self-consumption. 

2. The dangerous drugs were found to contain five plastic bags containing a total of 1.41 grammes of a solid containing 0.76 grammes of cocaine, and other drugs were found to contain four plastic bags containing a total of 1.10 grammes of a solid containing 0.6 gramme of cocaine, and the third exhibit found on the Defendant was found to contain 0.21 gramme of a solid containing 0.12 gramme of cocaine.  The total street value of the cocaine was HK$2,124 as at the January 2009.  These form the basis and the facts for Charge 1.

3. In respect of Charge 2, the Defendant was intercepted by the police officer on 3 February 2009 when the police officer was conducting an anti-dangerous-drug operation in the vicinity of No. 82 Bute Street, Mongkok.  The Defendant was intercepted at 11.23 pm when he was walking towards a building suspiciously.  Upon search, one transparent resealable plastic bag containing 75 transparent resealable plastic bags of suspected dangerous drug was found in the Defendant’s front left trousers pocket.

4. Under verbal caution by the police officer, the Defendant claimed that the drug was cocaine and it was for his self-consumption.  In a subsequent cautioned interview conducted on 4 February 2009, the Defendant remained silent.  The dangerous drug was found to contain a total of 21.58 grammes of a solid containing 16.43 grammes of cocaine.  The total street value of the cocaine was HK$18,084 as at February 2009.  At all material times, the Defendant was in possession of the drug for the purpose of unlawful trafficking.

5. The Defendant is aged 29.  He is single.  He has seven previous convictions with three relating to possession of dangerous drug.  According to the mitigation put forward by the defence counsel, the Defendant’s parents are suffering from ill health, and the Defendant is remorseful for the commission of the offences.

6. In respect of the sentence, I start with Charge 2 first.  Trafficking in cocaine is a very serious offence.  It is trite law that the sentencing guideline in relation to trafficking in heroin is also applicable in relation to trafficking in cocaine.  According to the sentencing guideline as laid down in the case of Lau Tak Ming, trafficking of heroin in the region of 5 to 50 grammes would attract a sentence in the region of 5 to 8 years.

7. According to the mitigation put forward by the defence counsel, half of the dangerous drug was for his self-consumption, and the amount of the trafficking was only half of the amount.  However, even considering that the amount of trafficking was about 8.2 grammes, it would attract a sentence near the region of 5 years.  In relation to the other 8.2 grammes for self-consumption, the court has to take into account the latent risk that the drug would be used for trafficking. 

8. Hence, taking into account the submission by the defence counsel, I would adopt a starting point of 5 years’ imprisonment for Charge 2.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 40 months’ imprisonment.

9. In respect of Charge 1, I would adopt a starting point of 12 months’ imprisonment.  Giving the Defendant the one-third discount for his plea of guilty, the sentence is reduced to 8 months’ imprisonment.

10. The sentence should in principle run consecutively.  But taking into account the totality principle, I would only order 3 months of the sentence in Charge 1 to run consecutive to the sentence in Charge 2, making a total of 43 months’ imprisonment.  This is the sentence I impose in the present case.