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DCCC 518/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 518 OF 2017
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| Date: |
9 November 2017 at 10.53 am |
| Present: |
Ms Mahinder Panesar, Counsel on fiat, for HKSAR |
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Mr Bok Tin Yuen, instructed by Messrs Pauline Wong & Co,
assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] & [2] Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. Defendant pleaded guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
2. The facts were that at about 1750 hours on 1 March 2017, police officers saw defendant driving a private car UJ 2845 and stopped at Pak Hoi Street near Nathan Road. Defendant alighted from the private car and walked towards Nathan Road while a passenger remained in the car, but defendant kept on turning around and looked towards the driver’s seat of the said car.
3. Police followed the defendant and intercepted him in Pak Hoi Street in junction with Nathan Road. Defendant confirmed that he was the owner and the ignition key of the car was in it. Police then escorted the defendant to the private car and found from defendant’s front right jacket pocket one tissue wrapping around a transparent resealable plastic bag containing cocaine, later confirmed to be 23.8 grammes of a solid containing 17.2 grammes of cocaine.
4. Police further found from the said car 2 packets of cocaine and one transparent resealable plastic bag containing 6 packets of cocaine in the storage compartment of the driver’s door in which there were one plastic bag containing 23.8 grammes of a solid containing 17.9 grammes of cocaine, one plastic bag containing 3.93 grammes of a solid containing 2.9 grammes of cocaine, and 6 plastic bags containing a total of 1.09 grammes of solid containing 0.8 grammes of cocaine.
5. Police arrested the defendant for the offence of trafficking in a dangerous drug and cautioned him. Defendant remained silent. The defendant had about $2,400-odd, one Samsung phone and one Samsung tablet with him.
6. Under caution in a subsequent video-recorded interview, defendant admitted that he owned the private car and only he used it. Prior to his arrest, defendant drove the private car to pick up the passenger to go for dinner, and that the passenger had nothing to do with the dangerous drugs found.
7. The total drugs found in this case were altogether 52.62 grammes of solid containing 38.8 grammes of cocaine. The estimated retail price of the cocaine at the material time was $947 per gramme. Therefore, the total estimated value is $947 x 52.62 grammes = $49,831.
8. Defendant now admits that he was in possession of all the above dangerous drugs for the purpose of unlawful trafficking.
9. Defendant aged 28 and he has 6 previous criminal convictions, of which 2 concerning assault occasioning actual bodily harm, 2 possession of dangerous drugs and also one similar trafficking when he was sentenced in November 2014 for 20 months’ imprisonment.
10. Mr Bok submits for the defendant that he is truly remorseful for what he has done, and from defendant’s letter, he disclosed that his 4-year-old daughter would be left without father’s attention and care. Defendant’s mother has also attended the court and pleaded for a lenient sentence for her son.
11. Mr Bok further submits that for the drugs concerned, he would take about one-fifth for his own consumption. And he also submits a urine test result from the Correctional Department where the defendant was found positive in cocaine on the date of reception.
12. Mr Bok also tells that although this case was already fixed for trial and he only pleads guilty now, a letter has been sent to the prosecution to inform the defendant’s intention to save court’s time and from calling witnesses, and therefore he asks in these circumstances 1/4 of discount may be adopted in the circumstances.
13. Trafficking in a dangerous drug is a very serious offence. The Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 1 HKC 342 had already set down the guidelines for trafficking where for trafficking in cocaines between 10 to 50 grammes, 5 to 8 years’ imprisonment should be imposed. Now that the total quantity is 38.8 grammes of cocaine, I assess that about 6½ years of imprisonment or more should be imposed.
14. However, there are now 2 charges the defendant is facing, respectively concerning 17.2 grammes and 21.6 grammes of cocaine. I assess that for each charge, 5½ years’ imprisonment should be adopted. As the defendant takes about 1/5 for his own consumption, further discount to 5 years’ imprisonment should be made for each charge (see HKSAR v Chow Chun Sang CACC 135/2011). As for the defendant’s late guilty plea, for each charge, it could be further reduced to 45-month imprisonment (see HKSAR v Ngo Van-nam CACC 327/2015).
15. Finally, for totality principle, after consideration, I order that 6 months from the 2nd charge should be made consecutive to the 1st charge. Therefore, the sentence is as follows:
1st & 2nd charges: 45-month imprisonment for each charge; and for the 2nd charge, 6 months from which be made consecutive to the 1st charge. So the total sentence for both charges is 51-month imprisonment.
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