HKSAR v. Lau Kwok Ho

DCCC222/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 222 OF 2012

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Reasons for Sentence

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1.The defendant enters a plea of guilty to one charge of trafficking in a dangerous drug, preferred against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.The facts to which he agrees are as follows.

3.On the day of the offence, a team of police officers were conducting an operation at a location near Room 615, Lung Lok House, Lower Wong Tai Sin (II) Estate, Wong Tai Sin, when the defendant acted suspiciously outside the flat.

4.The officers intercepted the defendant for enquiry. Inside the pocket of his jacket were found (i) an electronic scale, (ii) 16 resealable plastic bags, (iii) a plastic bag containing a solid weighing 11.97 grammes with 10.18 grammes of cocaine in it, and (iv) two foil packets containing 16 tablets of 0.09 grammes of nimetazepam.

5.Under caution the defendant said he was a drug addict and that he had purchased from a person nicknamed Monkey the ‘coke’ at $6,800 and ‘five chai’ at $450 for resale. 

Conviction

6.The court finds the defendant guilty as charged. Before his current conviction, he has had one criminal record which is unrelated to dangerous drugs. 

Mitigation

7.In mitigation, the defence puts forward the following matters for the court’s consideration.

8.The defendant is now 23 years old.  He is the elder of two siblings of the family.  His father is a decoration worker and his mother a clerk.  His younger sister is a student.

9.The defendant started work as an electrician after he finished his Form Three studies.  He met his girlfriend at school, and they have been living together.  A son was born of this relationship, who is now four years old and is attending kindergarten. 

10.For about four to five years, the defendant has been able to provide for the household expenses.  His girlfriend could stay home to look after the son. 

11.Due to the defendant’s arrest, his girlfriend had to look for gainful employment to provide for the young son, who has been entrusted to the care and attention of the defendant’s parents. 

12.Counsel submits that the defendant committed the present offence for financial gains; he had wanted to regularise his relationship with the girlfriend in a formal marriage. 

13.Counsel suggests that as the defendant was himself a drug addict at the material time, it was possible that part of the drugs he was found to have in his possession upon arrest might be for his own use. 

14.Finally, counsel relies on two clemency letters, one written by the defendant’s parents, the other by the defendant himself.  The parents blamed themselves for being slack in the defendant’s discipline, leading to his becoming wayward.  The defendant on the other hand asked to be dealt with leniently so that he could resume looking after his girlfriend and son as soon as possible.

Discussion

15.Drug abuse poses a constant threat to the well-being of the society; no one should be in any doubt about this.  It wrecks a person’s life, sometimes beyond hope and repair.  It ruins families and breeds crimes, ad hoc and organised. 

16.Even those who have successfully fought and overcome their addiction, which is itself a most painful process, their personalities and emotional make-up are often marred for life.  Their social circle tends to be restricted to drug addicts and ex-addicts.  Employment opportunities for them are in most cases limited. Prospects of their reintegration into the society are grim.

17.Drug addicts, and ex-addicts alike, would often find themselves living in dire poverty over sustained periods and a life without self-esteem.  In terms of social costs and loss, the society suffers beyond measure.

18.Drug traffickers are responsible for the spread of this vice habit.  The duty is upon the court to play its part in the fight against the drug trade, to see to it that no one would be in any doubt that the society does not tolerate criminal conduct involving drug deals.

19.Cocaine has been identified to be a hard drug.  The sentence tariff referred to in R v Lau Tak Ming [1990] 2 HKLR 370 for trafficking in heroin is applicable to cases of trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 1 HKC 324).  For the amount of cocaine in which the defendant has trafficked in this case, a starting point of five years would be appropriate.

20.The defendant was found to have a small quantity of nimetazepam with him upon arrest.  In all the circumstances of this case, the starting point should be enhanced by three months.

21.The court rejects counsel’s submission that part of the drugs might be for the defendant’s own use; the court finds this suggestion at odds with the defendant’s cautioned admission.

22.Prior to his current conviction, the defendant has had one criminal record for an offence of fraud for which he was sentenced to six months’ imprisonment suspended for two years.

23.Although that offence is dissimilar to the present one, the court notes the suspended sentence relates to a serious offence of fraud and that the suspension period has still some nine months to run.  There is no exceptional circumstance not to activate the suspended sentence.  Apart from the defendant’s guilty plea, none of his personal and family circumstances would warrant any further reduction in sentence.

Conclusion

24.In the result, the appropriate starting point is one of five years and three months, which is reduced by one-third to reflect the defendant’s guilty plea to one of three and a half years’ imprisonment. 

25.The suspended sentence imposed in TW/3112/2010 is activated.  Having considered the principle of totality, the court orders that two months of that sentence is to be served consecutively to the three and a half years sentence in the instant case.

Order

26.The defendant is sentenced to serve a period of imprisonment of three years and eight months.