HKSAR v. CHOI KA CHUN

DCCC 450/2018

[2018] HKDC 1461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 450 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  At around 6:23 am on 26 January 2018, the defendant was stopped and searched by police outside Wah May Building at No 36, Shantung Street, Mongkok.  Upon search, a plastic bag containing 23.7 grammes of heroin hydrochloride was found inside the defendant’s underwear.  At that time, the defendant was in possession of cash of HK$1,618.

3.  The estimated street value of the dangerous drug seized is about HK$27,481.

4.  In subsequent video-recorded interview, the defendant stated that he purchased the drug for HK$11,000 from a male at Kwun Tong for self-consumption, and that he worked as construction worker earning about HK$1,200 to HK$1,300 per day.

Mitigation

5.  The defendant is aged 38, divorced and lived with his family prior to the arrest.  He worked as construction worker earning about HK$25,000 per month before his arrest.  He would pay HK$3,000 for maintenance of his ex-wife and daughter and a few thousand to his parents.  He has 6 previous conviction records, all of which are not similar to the present offence.

6.  Mitigation letters were submitted.  The defendant stated that he committed the present offence out of stupidity.  He wished to be released as soon as possible so that he could take care of his parents and his daughter. His ex-wife and parents asked the court for leniency in sentence.

7.  In mitigation, it was submitted that part of the drugs, about 5-8 grammes, were for the defendant’s own consumption.  Counsel for the defence referred to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and Secretary for Justice v Chan Chun Fai [2011] 3 HKLRD 116 and urged the court to give a discount for this factor.  Finally, it was submitted that the defendant indicated his guilty plea at the earliest opportunity and should be granted the usual 1/3 discount.

Sentence

8.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see R v Lau Tak Ming [1990] 2 HKLR 370).  For trafficking in 10 to 50 grammes of heroin, the sentence ranges from 5 to 8 years.  Given the amount of drug involved is 23.7 grammes, I consider the appropriate starting point to be 6 years. 

9.  Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption.  In the present case, it was submitted that 5-8 grammes of the drug seized were for the defendant’s own consumption.  This would amount to 1/3 of the quantity of drug seized.  In HKSAR v Choi Chun Wo CACC 273/2017, 28.5% of the total quantity of drug seized was considered by the Court of Appeal to represent a “significant proportion”. Given the prosecution has no evidence to rebut the allegation of self-consumption, I am prepared to accept that a significant proportion of the drug was for the defendant’s own consumption and therefore reduce the starting point by 9 months to reflect the discount for self-consumption.  Therefore, the starting point is reduced to 5 years and 3 months.

10.  Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence is reduced to 42 months’ imprisonment. 

11.  Although I have sympathy for the difficulties faced by the defendant’s parents and the hardship caused to the defendant’s family as a result of the conviction and imprisonment of the defendant, family hardship is generally not a valid mitigating factor justifying reduction of sentence. 

12.  Apart from the defendant’s guilty plea and the factor of self-consumption, I do not see other valid mitigating factor justifying further reduction of sentence.  I hereby sentence the defendant to 42 months’ imprisonment.