HKSAR v. STEWART MARCUS JONATHAN

DCCC 774/2020

[2021] HKDC 330

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 774 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to trafficking in dangerous drugs, involving 75.2 grammes of a solid containing 6.3 grammes of cocaine.

2.  The facts of the case as admitted by the Defendant disclose that the Defendant was intercepted by the police at 2210 hours outside Ground Floor, Nos. 7-11 Square Street, Sheung Wan.  He was found alone and acting furtively.  Upon enquiry, the Defendant stated that he was waiting for a friend.  HK$270 and three keys were found on him upon preliminary search at the scene. 

3.  Upon further body search at the Central Police Station, a tissue paper wrapping a transparent plastic bag containing eight plastic wrapped packets containing 75.2 grammes of a solid containing 6.3 grammes of cocaine was concealed inside the underpants worn by the Defendant.  He was arrested and under caution he said that “Sir, I think this is cocaine, but this is just a male giving me in a party, I don’t know that guy and he give it to me just for the next party”. 

4.  In a subsequent video-recorded interview (the “VRI”), the Defendant confirmed that the drugs seized from him was cocaine, and that prior to the arrest, he was waiting for a friend whom he did not know the name, identity nor contact telephone number of.  He alleged that he could not recall any details of the party and the ‘next party’, including the purpose and headcount.  He also stated that he did not know the quantity of the cocaine when it was given to him.

5.  The Defendant is 37 years old and single.  He has a clear criminal record.  He lived with his elder brother in Hong Kong, who provided for the daily expenses of the household.  Other family members are in the United States.  He obtained an Associate Degree in the United States in 2012.  He had worked as a gym manager for 10 years in the US before moving back to Hong Kong in 2019 to look for a job in the field of physical fitness.  He was also an event organiser in Hong Kong between March 2020 and June 2020.  He had been living on his savings and he had no major expenses as his elder brother took care of those.

6.  Defence counsel submitted that the Defendant attended a birthday party on the day of the offence, and consumed cocaine with another person.  The cocaine was given to him by a person with whom he had taken drugs with before. After the party was over, the Defendant took what was left of the cocaine and intended to save it for the next gathering.  There was no element of trafficking for profit.  The Defendant states that he intended to consume 50 to 75% of the cocaine seized.

7.  Defence also stated that the Defendant was a recreational user of cocaine from 2018 to the time of arrest, and that he had stopped abusing drugs since the arrest.  He would abuse cocaine from Friday to Sunday evenings, consuming a total of 3 to 4 grammes of cocaine during one weekend.  In the three to four hours of gathering prior to the arrest, he had consumed around one gramme of cocaine.

8.  Defence counsel also submitted in aid of the line of mitigation on self-consumption that there were no paraphernalia found either on the Defendant or at the house search.  The purity of the cocaine was very low, i.e. there was only 6.3 grammes narcotic content out of 75.2 grammes.  The Defendant is of clear record.  The cocaine came in the packing as found by the police, and the reason for concealing the cocaine in his underpants was for avoidance of detection when he was about to bring the drugs home. 

9.  Defence had also submitted a letter from the Correctional Services Department confirming that the Defendant had been tested positive in cocaine at the urine test conducted the day after his admission to Lai Chi Kok Reception Centre, i.e. three days after the arrest.

10.  Prosecution disputes the said claim of self-consumption.  It is submitted by fiat counsel that the Court should consider that the drugs were wrapped tightly in eight pellets, and they have an estimated street value of $9,191.70.  The prosecution submits that the Defendant, being unemployed, could not have the means to acquire these drugs.  It is also submitted that the Defendant did not mention self-use under caution.

11.  After hearing counsels’ submissions, I decided that it is not necessary to have evidence called to decide the issue of self-consumption. 

12.  In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal stated at paragraph 33 that:-

“…in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular case any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted as having been intended for self-consumption carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true ‘mixed’ cases, the difference in sentence, if any, will be slight.”

13.  And at paragraph 34 that, in determining the issue of whether a “significant portion” of the dangerous drugs was for self-consumption, the judge ought to have regard to the following:-

“The factors to be considered will include:

(a)  the quantity of drugs and, if known, their value;

(b)  the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c)  where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d)  the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e)  whether the defendant is an addict or is otherwise accepted to have been a habitual user of the drug in question;

(f)  the explanation given by the defendant following arrest;

(g)  the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h)  the defendant’s criminal record, if any, in relation to previous drug offences.”

14.  I have considered the following factors in the resolution of this issue.  The CSD letter confirms the presence of cocaine in the Defendant’s urine three days after his arrest at a test conducted at the Lai Chi Kok Reception Centre.  There had also been a lack of paraphernalia associated with trafficking seized from the Defendant’s body or his home.  The location was a public place, and there were multiple small wrapped pellets of cocaine, but these two factors are equally consistent with trafficking of all drugs seized and part of it being intended for self-consumption.  Defence stated that the Defendant intended to share the drugs seized with another person.

15.  I have also considered that the estimated street value of the cocaine, the poor quality of the cocaine, and even though the Defendant was looking for a job at the material time, his elder brother, who is in Court today, was living with him and supported his daily living, and that the Defendant had savings. 

16.  I find that even though the Defendant did not spell out clearly under caution that part of the cocaine was for self-consumption, he did mention that it was for the next party. 

17.  I therefore will accept that half of the 6.3 grammes of cocaine was intended for his own consumption, and that the quantity for self-consumption is a significant portion of that seized.

18.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraph 19, Yeung VP said:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the Court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the Defendant.”

19.  An arithmetic calculation of trafficking in 6.3 grammes of cocaine arrives at a starting point of 3.89 years’ imprisonment, and in the exercise of my discretion in sentencing, I am of the view that the result of this calculation is fair and appropriate.  I am of the view that a discount of 15% from the starting point is suitable for the proportion of drugs for self-consumption, lowering the starting point to 3.3 years’ imprisonment. I will allow a one-third discount for the Defendant’s plea of guilty.  The Defendant is sentenced to 2 years and 2 months’ imprisonment.