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DCCC 182/2018
[2018] HKDC 1337
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 182 OF 2018
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| Present: |
Mr Yaddy Cheung, solicitor on fiat, for HKSAR
Mr Geoffrey Chang instructed by Cham & Co, assigned by the Director of Legal Aid for the defendant |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of trafficking in 47.50 grammes of a solid containing 41.50 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. In summary at around 10:40 p.m. on 18 December last year the police intercepted the defendant outside Blocks 2 & 2A of Shin Lai House, Chui Ling Lane in Tiu Keng Leng. DPC 12841 conducted a body search and found inside the right back pocket of the defendant’s trousers two plastic bags containing the cocaine.
3. Two mobile phones and $1,020 cash was also found on the defendant.
4. Under caution the defendant said that he was in debt and that he was going to deliver the drugs to earn money.
Mitigation
5. In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chang together with the defendant’s mitigation letter in which he promises to stay away from drugs and not disappoint his family again.
Starting point
6. The courts have equated for sentencing purposes cocaine with heroin[2]. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin. Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years’ imprisonment[3].
7. On a purely mathematical approach a starting point of just over 7 years and 4 months’ imprisonment would be appropriate for trafficking in 41.50 grammes of cocaine. Taking into account the defendant has no convictions for drug offences, I am satisfied a starting point of 7 years and 3 months’ imprisonment is appropriate.
8. A starting point of 7 years and 3 months’ imprisonment exceeds the maximum jurisdiction of the court of 7 years’ imprisonment. The defendant is therefore somewhat fortunate the case was not brought to the High Court. I am nevertheless satisfied I can take a starting point in excess of the jurisdiction so long as the sentence imposed reflects a meaningful discount from the maximum of 7 years.
Own use
9. Mr Chang informs the court that the defendant has been a drug addict for over ten years. At the time of his arrest the defendant owed $40,000 - 50,000 gambling debt. When he was arrested the defendant had just collected the drugs which he was going to take home and later deliver to others for a reward of $2,000.
10. The defendant claims that around 10% of the cocaine was for his own consumption.
11. The prosecution does not accept part of the drugs were for the defendant’s own consumption.
12. Sentence was adjourned for the defendant to obtain the result of his urine test on admission to Lai Chi Kok Reception Centre. The result is positive for cocaine.
13. Although this lends support to the defendant’s claim he is a drug addict, as indicated in court without further evidence I do not accept the mere assertion that part of the cocaine was for the defendant’s own consumption.
14. Mr Chang having taken further instructions informs the court that the defendant does not wish to give evidence in support of his claim that part of the cocaine was for his own consumption.
15. The claim is contrary to what the defendant told the police that he was in debt and was going to deliver the drugs to earn money. At no time did the defendant tell the police part of the drugs were for his own consumption.
16. In addition the defendant was arrested at night in Tiu Keng Leng whereas he resided in Hoi Lai Estate in Lai Chi Kok[4]; nothing incriminating was found in his home[5] and the packaging of the drugs in two packets each containing 20 grammes of cocaine was not consistent with someone being able to take out approximately 10% for his own use.
17. I reject the defendant’s assertion part of the drugs were for his own consumption. I proceed on the basis that all the cocaine was for trafficking.
Meaningful discount
18. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years and 10 months’ imprisonment, which I am satisfied reflects a meaningful discount from the maximum of 7 years[6].
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134.
[2] See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
[3] [1990] 2 HKLR 370.
[4] See §4 of the summary of facts admitted by the defendant and §(h) of the antecedent statement.
[5] See §4 of the summary of facts admitted by the defendant.
[6] In determining what is a meaningful discount I have considered the cases of HKSAR v Li Yan [1998] 4 HKC 12; HKSAR v Lee Tsung Lin CACC 53/2002; HKSAR v Lau Bing CACC 138/2008; HKSAR v Cheung Kwok Yip, Peter [2013] 3 HKC 470 and HKSAR v Wong Ngon Ching CACC 393/2015.
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