HKSAR v. Lui Yin Lung

DCCC 1367/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1367 OF 2010

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Reasons for Sentence

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Introduction

1.The Defendant was driving a private car when stopped at a police road block.  The police found packs of cocaine and ketamine on the seat.  He was charged with trafficking in dangerous drugs but pleaded simple possession.  He was acquitted of trafficking and convicted of possession after trial.

Case as found

2.At 9:04 p.m. on 23 October 2010, he was driving a private car without passengers when the police stopped him at a road block at Texaco Road near Tsuen Kam Interchange.  A McDonald’s brown paper bag was on the front passenger seat.  It contained another McDonald’s brown paper bag and a red French fries paper box.  The former contained 2 packs of cocaine and the latter contained 2 packs of ketamine.  The cocaine weighed 13.99 g and 14.00 g, with a narcotic content of 10.29 g and 10.41 g respectively, namely a total of 20.70 g.  The ketamine weighed 1.90 g and 0.03 g, with a narcotic content of 1.06 g and unspecified respectively.  He had $2,520 cash, among other items, on him.   

3.After arrest and caution at scene, he claimed the cocaine was purchased from a person called Ah B in Mongkok for $16,000 for his own consumption.  The prosecution has failed to negative such claim. 

Personal background and mitigation

4.The Defendant is 25 years old.  He resides with his wife and parents.  He has a son, aged 1 ½. 

5.He had been employed as the head chef in Life Cafes in Yau Ma Tei for 3 months but he lost the job as a result of the arrest.    His salary was $16,000 per month.  When he had a job, he contributed $8,000 per month as family expenditure.  He had $8,000 per month for his own use.  His wife was and still is a receptionist at a Japanese restaurant.  She earns $8,500 per month. 

6.On 7 October 2010 he received $20,000 as deposit for the sale of his own car.  On 23 October 2010, he had used $16,000 to buy the present quantity of cocaine in an amusement game centre in Mongkok.  The ketamine was a free treat by the seller.

7.I reiterate my findings at trial that the cocaine could last 4 months.  I am referred to HKSAR v Wan Po Wo CACC 498/2005.  It involved slightly more cocaine (27.69 g) in a car and other people holding keys to the car.  The Court of Appeal approved a starting point of 2 years and an enhancement of 9 months due to latent risk. 

8.The DATC Report found the Defendant no longer dependant on drugs.  Defence counsel refers to HKSAR v Mok Cho Tik [2001] 1 HKC 261.  Latent risk shall see a steeper enhancement where, apart from easy access by other people to the drugs as elucidated in Wan Po Wo (above), the offender was not in employment, he had convictions for trafficking, the drug was in large quantity and the full circumstances of the case so warranted.  His counsel asks me to adopt a starting point of no more than 18 months and an enhancement of 6 months.

9.The Defendant had 4 months’ stock.  He had 3 convictions for trafficking in 2002.  This is not cited to increase his sentence but only as a pointer that he had done it 3 times before.  I take a starting point of 18 months, to be enhanced by 6 months due to latent risk.  I reduce his sentence by one-third for his plea.  His sentence is 16 months.