HKSAR v. Lam Kin Wa

DCCC 308/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 308 OF 2014

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REASONS FOR SENTENCE

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1.The defendant, Lam Kin Wa (male) (aged 35), appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The subject matter of the dangerous drug is cocaine, and the quantity of drugs, according to the government chemist’s certificate, is 26.08 grammes of a solid containing 13.71 grammes of cocaine.

Facts

3.According to the Summary of Facts which has been agreed by the defendant, the defendant was arrested by the police during an anti-dangerous drugs operation which took place on the 6th Floor, New Lucky House, Nos 298-306 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong. 

4.On 25 January 2014, at around 4:28 am, the police spotted the defendant who had then just come out from Flat F on the 6th floor, acting furtively, and he was later intercepted by the police in the lift lobby on the same floor.

5.During a body search, the police found in a drink carton which was held by the defendant two transparent resealable plastic bags, one containing 70 plastic bags containing a total of 15.03 grammes of a solid containing 8.18 grammes of cocaine and the other containing 52 plastic bags containing a total of 11.05 grammes of a solid containing 5.53 grammes of cocaine.  The police also found cash HK$1,138 and also two mobile phones on the defendant. 

6.The defendant was therefore immediately arrested and cautioned by the police and under which the defendant admitted that he was delivering the cocaine for someone called Tin Gai in return for a reward of HK$300.

7.In a subsequent video-recorded interview, the defendant gave more details about how this person Tin Gai had instructed him to deliver the drugs to Chungking Mansion in Tsim Sha Tsui.  Before the defendant could do so, he was arrested by the police.

8.The street value of the drugs in question is estimated to be $34,113.

Background and the criminal records of the defendant

9.The defendant has appeared in the court in 11 times before starting from 2002 to 2012.  As far as dangerous drugs is concerned, he had three convictions of trafficking in dangerous drugs, first in 2004 and later in 2008.  He was sentenced to DATC and a total of 14 months’ imprisonment respectively. There was also a couple of possession of dangerous drugs convictions.  His last conviction was in relation to managing a vice establishment and he was last discharged from prison in September 2012.  The defendant was since unemployed and was living on public assistance of a monthly allowance of $2,000 a month. He is still single and he had an education level of about Form 3 level in China.

Mitigation

10.In mitigation, counsel for the defendant assigned by the Director of Legal Aid, Miss Susanna Lee, had submitted for the court’s consideration a handwritten letter by the defendant in which the defendant had expressed his remorse and promised the court that he would never re-offend again.  He said he was determined to turn over a new leaf and to lead a normal and law-abiding citizen’s life.  He asked the court to be as lenient as possible.

11.Miss Lee said that when the defendant first came to Hong Kong, he had lost his interest in study and he had first worked as a kitchen worker for four to five years but during which time he had been led astray by some dubious peers into the habit of taking drugs and thereafter he cannot maintain a regular job.  The reason why he committed the present offence was obviously economic, due to the temptation of a reward by the trafficker behind. Miss Lee also urged the court to be as lenient as possible.

Sentencing considerations

12.In sentencing, I took into account the guilty plea tendered by the defendant, his personal background as well as the mitigation advanced on his behalf.  Trafficking in dangerous drugs is of course a very serious offence, and anyone who has been convicted by the court of this serious offence will be expected to be dealt with severely by the court. 

13.The present case involved a quantity of cocaine.  According to the Court of Appeal, the tariff for trafficking in cocaine could be borrowed from the same tariff applying to heroin in the famous case of R v Lau Tak Ming & Others [1990] 2 HKLR 370.  In other words, for the quantity between 10 to 50 grammes of cocaine, applying the tariff, the range of sentence would be between 5 to 8 years. 

14.As the present quantity of cocaine is about 13.71 grammes, the proper starting point of this case would be over 5 years.  In my calculation, it should be about 63 months.

15.The defendant pleaded guilty which is the only effective mitigation here.  The court can never accept a defendant to commit crime for economic reasons.  The defendant pleaded guilty, for which he would be entitled to the full one-third discount.

16.After the reduction, the defendant is therefore sentenced to 42 months’ imprisonment which is 3 years and 6 months.