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DCCC 192/2019
[2020] HKDC 32
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 192 OF 2019
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| Present: |
Mr Simon Kwong Cho Yan, Senior Public Prosecutor of the Department of Justice, for HKSAR |
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Mr Alfred Wong Wing Yu, instructed by Annie Leung & Company, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant was convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to amended summary of facts.
Facts
2. At around 11:50 pm on 18 December 2018, the defendant was intercepted by a Custom officer when he was passing through the Custom Departure Hall at Sheung Wan Hong Kong-Macau Ferry Terminal on his way from Hong Kong to Macau.
3. Upon body search, a packet of dangerous drugs subsequently confirmed by the Government Chemist to be 21 grammes of a solid containing 6.12 grammes of cocaine was found to be concealed in his underpants.
4. The defendant was arrested. Under caution at the scene, he admitted, inter alia, the following:-
(i) the white substance seized from him was a dangerous drug, namely cocaine; and
(ii) the contraband was intended for his own consumption.
5. At the time of his arrest, he was found to be in possession of the following items:-
(i) 2 iPhones with 2 SIM cards;
(ii) cash in the sum of approximately HK$896;
(iii) an outbound ferry ticket from Hong Kong to Macau (depicting departure time of 11:59 pm on 18 December 2018).
6. The estimated street value of the dangerous drugs seized from the defendant is HK$21,735.
7. At the material time, the defendant possessed the subject dangerous drug in question for the purpose of unlawful trafficking.
Criminal Record
8. The defendant has a clear record in Hong Kong.
Mitigation
9. The defendant is aged 19. He is born in Hong Kong.
10. He received education up to Form 5 and had been working as a kitchen assistant for about a year.
11. At the time of arrest, he was unemployed.
12. He lives with his family in a public housing estate in Yau Tong. His father is aged 55 and retired. His mother is aged 46 and is a waitress, earning about HK$10,000 a month. The defendant’s younger brother is only aged 8 and is a primary school student.
13. It is submitted that according to the Court of Appeal case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370, the relevant sentences for trafficking in cocaine for the amount of 6.12 grammes of cocaine should be around 46 months’ imprisonment.
14. It is submitted that the guilty plea of the defendant is the most valid mitigating factor in the present case and defence counsel urged this court to give the defendant the appropriate sentencing discount of which he is entitled.
Discussion
15. The maximum sentence on conviction on indictment for this offence is fine of HK$5 million and imprisonment for life.
16. For trafficking of cocaine, following the authority of Pedro Nel Rojas [1994] 1 HKC 342, which adopts the guideline in Lau Tak Ming case, CACC 230/1989, the appropriate sentencing starting point for trafficking up to 10 grammes of cocaine is 2 to 5 years’ imprisonment and adopting a mathematical approach, the starting point for sentence here is 3 years and 10 months, as submitted by defence counsel.
17. Trafficking in dangerous drug is a very serious offence and personal background of the defendant is seldom a valid mitigating factor.
18. When arrested, the defendant was unemployed. He had two mobile phones on him as well as HK$21,735 worth of cocaine on him.
19. Urine test performed on him found no trace of dangerous drugs in his urine sample. It is suggested therefore that he himself is not a drug user and the dangerous drugs seized on him was not for his own consumption.
20. Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea, of which he is entitled to a full one-third sentencing discount.
21. His sentence is therefore reduced to 30 months and 18 days’ imprisonment.
22. The defendant is a man of clear record and used to be a man of clear record. He is a fresh offender and this court is willing to further reduce the sentence by 2 months 18 days to 28 months’ imprisonment.
23. The defendant is therefore sentenced to 28 months’ imprisonment for the offence.
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