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DCCC 715/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 715 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Ms. Louisa LAI, solicitor on fiat, for HKSAR. |
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Mr. Jon WONG, instructed by M/s M.M. Wong &
Co., assigned by the Director of Legal Aid, for the
defendant. |
| Offences : |
(1) Trafficking in a dangerous drug（販運危險藥物）
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(2) Possession of an offensive weapon（管有攻擊性武器）
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REASONS FOR SENTENCE
The defendant faces 1 charge of "Trafficking in a dangerous drug" (Charge 1) and 1 charge of "Possession of an offensive weapon" (Charge 2). He pleaded guilty to Charge 1.
2. Upon application by the prosecution, I ordered Charge 2 be left in the court file; not to be proceeded against the defendant without leave of court.
Summary of Facts
3. About midnight on 24 June 2015, Mr. LAI Ho-kit (PW1) informed the Police that he suspected his brother (i.e. the defendant) had brought drugs to their home[1] ("the Flat"). PW1 and the defendant resided at the Flat with their grandparents.
4. Shortly after 2:00 am, PC 18140 and other police officers arrived at the Flat. The defendant's bedroom was searched in the presence of PW1. From the left drawer of the defendant's bed, PC 18140 found :-
(i) a ceramic bowl containing white power (later found to contain traces of a powder containing cocaine);
(ii) 18 empty transparent resealable plastic bags;
(iii) a hammer and a metal stick; and
(iv) 105 transparent resealable plastic bags, each containing suspected dangerous drugs.
Also, from the top shelf of a black cabinet, PC 18140 found 3 transparent resealable plastic bags wrapped with a piece of tissue paper, each containing suspected dangerous drugs.
5. The 108 transparent resealable plastic bags were later found to contain a total of 22.10 grammes of a solid containing 16.40 grammes of cocaine.
6. The defendant was not at home during the search. PW1 and his grandparents confirmed that only the defendant had been in his bedroom. They have not seen anyone else entering that room. Furthermore, the cocaine and the packaging paraphernalia found in the defendant's bedroom did not belong to PW1 or his grandparents.
7. Shortly after 3:00 pm on 2 July 2015, SPC 34798 located and arrested the defendant at Yue Kwong Road, Aberdeen. In his video recorded interview, the defendant admitted living at the Flat with his brother (PW1) and their grandparents.
Mitigation & Sentence
8. The defendant is 20[2] and has 1 conviction record, which is not drug-related. Defence counsel Mr. WONG informed me that the defendant has only completed F.1. He is a delivery worker earning $10,000 per month.
9. In mitigation, Mr. WONG submitted that the defendant comes from a broken family. His parents were divorce
d when he was 6. His father works in the mainland and his mother has started a new family. They seldom have contact with the defendant. As a result, the defendant became a delinquent.
10. Mr. WONG also informed me that the defendant has been a drug addict (both cocaine and ketamine) for 6 years. His instructions are that the defendant intended to consume half of the cocaine found at a rate of 3 grammes per day.
11. Letters written by the defendant and his social worker were placed before me; their contents are duly noted.
12. 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.
13. 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. In the present case, the defendant trafficked in 16.40 grammes of cocaine, the appropriate starting point is 5.5 years.
14. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[3]. Despite the lack of conviction records and relevant evidence which tend to show his habitual use of drugs, I have no basis to doubt the truth in the defendant's assertion. I, however, reject his claim that half of the cocaine found was for his own consumption. I note that 3 packets were stored separately from the 105 packets and at a different location. I am prepared to reduce the sentence to 57 months[4] to reflect the discount for self-consumption.
15. Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 38 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 38 months' imprisonment.
[1] The address is particularized in Charge 1.
[2] Although the defendant is under 21, by virtue of section 109A(1A) of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.
[3] See HKSAR v CHOW Chun Sang [2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin Man CACC 294/2009 (English translation).
[4] In CHOW Chun Sang, Yeung VP held "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." (paragraph 19, p.1126)
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