HKSAR v. Lau Wing Kit and Another

Consolidated
DCCC 297 & 531/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 297 & 531 OF 2013

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REASONS FOR SENTENCE

1.D1 and D2 each pleaded guilty to a charge of "Trafficking in a dangerous drug" (respectively Charges 1 and 2). The dangerous drug involved is cocaine.

Summary of Facts

2.About 5:40 am on 29 July 2012, WPC 374, PC 54627 and PC 13757 (PWs 1 to 3) were patrolling in uniform along Carnarvon Road in Tsim Sha Tsui.  They saw a private car (KH 568) parked outside No.6G Carnarvon Road ("the Scene").  D1 was sitting in the driver seat and D2, in the left rear seat.  PW1 saw D2 handling 2 to 3 transparent re-sealable plastic bags which contained white powder on his thighs.  She relayed her observation to PWs 2 and 3.

3.PWs 2 and 3 attempted to open the right rear door and left rear door of KH 568 respectively, but the doors were locked.  Suddenly, D1 alighted from the car and fled along Carnarvon Road and Nathan Road.  PW1 gave chase and ordered D1 to stop.  The pursuit continued from Carnarvon Road to Mody Road and D1 was seen boarding a taxi (JV 5560) at Blenhiem Avenue.  The taxi went towards Tsim Sha Tsui East.  PW1 radioed her observation to console and then returned to the Scene.

4.PC 34325 (PW4) learned about the alleged flight of D1.  About 5:50 am on the same day, PW4 stopped JV 5560 at Hong Chong Road outside the Polytechnic University and brought D1 back to the Scene.

5.D1 was searched at the Scene.  The key of KH 568 was found on him.  The car was also searched in the presence of D1 and D2.  A transparent re-sealable plastic bag (E2; later found to contain 10.94 grammes of a solid containing 10.53 grammes of cocaine) was found underneath the handbrake near the gearbox.  An electronic scale was also found in the gap between the left side of the driver seat and the gearbox.

6.Shortly after D1 fled, D2 also alighted from KH 568.  PW3 searched him and found 3 transparent re-sealable plastic bags (collectively E1; later found to contain a total of 0.73 gramme of a solid containing 0.70 gramme of cocaine) being held in D2's fist.

7.Under caution, D1 and D2 both stated they had nothing say. 

8.D1 now admits that he possessed E1 and E2 for the purpose of unlawful trafficking; and D2 admits that he possessed E1 for the purpose of unlawful trafficking.

Mitigation

9.D1 is now 26, single and resides with his mother in a public housing unit.  He has 6 conviction records including 4 "simple possession" offences.  He was recently sentenced to a Drug Addiction Treatment Centre in July this year and is currently detained there.

10.D1 has completed F.5 education.  He worked as a lorry driver prior to the present case.

11.D2 is now 24, single and resides with his parents in a public housing unit.  He has 7 conviction records, all of which are drug-related including 2 "trafficking" offences.  He was recently sentenced to a Drug Addiction Treatment Centre in July this year and is currently detained there.

12.D2 has completed F.1 education.  He was a transportation worker prior to the present case.

13.Due to the small quantity of cocaine involved in Charge 2, defence counsel Mr. PUN submitted that the court has the discretion to adopt a starting point lower than 2 years[1]. Moreover, Mr. PUN stressed that despite D2's numerous conviction records (which include 2 "trafficking" offences), he has never been to prison before.

Sentence

14.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

15.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

16.In Charge 1, D1 trafficked in 11.23 grammes of cocaine; the appropriate starting point is 5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 40 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence D1 to 40 months' imprisonment.

17.In Charge 2, D2 trafficked in 0.70 gramme of cocaine; the appropriate starting point is 18 months.  However, D2 already has 2 conviction records of "trafficking", the starting point should be raised to give a deterrent effect.  I will adopt a starting point of 21 months instead.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence D2 to 14 months' imprisonment.