HKSAR v. Lam Kwan Lung

DCCC 1067/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1067 OF 2014

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REASONS FOR SENTENCE

1.D2 pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 3). The dangerous drug involved is cocaine.

Summary of Facts

2.About  6:00 pm on 15 August 2014, Customs Officer 8115 (PW1) knocked on Room 10, 1^st Floor, Nos.54-56 Wing Hong Street, Cheung Sha Wan ("the Flat").  D2 opened the door.  PW1 and his team entered the Flat to conduct a search.  The Flat has no partitioning.

3.From a drawer at the rear of the bed, PW1 found 12 transparent resealable plastic bags of suspected cocaine in a tin box placed inside a paper box.  Under caution, D2 said "Ah Sir, I understand. Those are cocaine.  Only 12 packets and they are mine."

4.PW1 continued to search.  On top of a cabinet near the rear of the bed, he found a bag containing multiple transparent resealable plastic bags and an electronic scale.

5.Finally, PW1 found a tin box near the front of the bed; it contained 75 packets of suspected cocaine.  PW1 cautioned D2 again.  D2 replied "I understand.  Those are cocaine as well.  They are mine."  He further told PW1 that the cocaine was for sale; the electronic scale and resealable plastic bags were for packaging the cocaine. D2 also admitted that he was living with a friend at the Flat, but the cocaine found belonged to him (i.e. D2).  D2 possessed the key to the Flat.

6.A Government Chemist confirmed that the substance found by PW1 in the Flat was a total of 87 plastic bags which contained a total of 40.58 grammes of a solid containing 34.42 grammes of cocaine.

Mitigation & Sentence

7.D2 is 19 and has a clear record.  Defence counsel Mr. LEE informed me that D2's family consists of his mother and 2 elder siblings; his father passed away in 2012 due to cancer.  D2 did not reside with his family but a friend at the Flat.  Still, he maintains a good relationship with his family members

8.In mitigation, Mr. LEE submitted that D2 used to work as a chef in a Chinese restaurant, but lost his job 1 month prior to his arrest.  At that time, D2 was in credit card debt in the sum of $60,000.  He did not want to trouble his family since his elder brother was the only person working.  At the suggestion of undesirable peers, D2 resorted to drug trafficking.  Mr. LEE informed me that D2 could only earn $2,000 for the lot of cocaine found in the Flat.  Mr. LEE has fairly accepted that economic hardship is no mitigating factor and that the credit card debt was incurred by D2 himself.

9.I AM AWARE OF D2'S AGE.  ON SENTENCING DRUG TRAFFICKERS WHO ARE IN THEIR LATE TEENAGE YEARS, YEUNG V-P RECENTLY IN SJ V CHAU Tsz Tim[2015] 1 HKLRD 853 held :-

"Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the 'aged', the 'young' or the 'crippled' will be encouraged to take part.

Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercise great care before committing young offenders to prison.

However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it…" [1]

10.Although D2 is under 21, by virtue of section 109A(1A) of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  Besides, the quantity of cocaine involved in this case is far too serious to consider other sentencing options except immediate imprisonment.  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.

11.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 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

12.In the present case, D2 trafficked in 34.42 grammes of cocaine.  For that quantity, the starting point falls squarely at midpoint of the scale at 6.5 years.  In view of his youth and clear record, I adopt a slightly lower starting point of 6 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 4 years.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 4 years' imprisonment.