HKSAR v. TSE KA CHUN

DCCC 621/2018

[2019] HKDC 222

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 621 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “trafficking in a dangerous drug”.

Facts of the case

2.  At around 22:08 on 10 April 2018, the defendant drove and parked a private vehicle near Shin Yung House, Long Shin Estate, Yuen Long.  He then alighted from the vehicle, holding a blue plastic bottle in his right hand, and looked around furtively.

3.  Upon stop and search, 14 transparent resealable plastic bags containing 2.78 grammes of a solid containing 2.47 grammes of cocaine were found in the blue plastic bottle, and 2 mobile phones were also found on the defendant.

4.  Upon further search, 13 transparent resealable plastic bags containing 2.52 grammes of a solid containing 2.32 grammes of cocaine, one more mobile phone, and cash of HK$15,830 were found inside the vehicle.

5.  Government Chemist confirmed that the drugs found were a total of 5.30 grammes of a solid containing 4.79 grammes of cocaine.  The estimated street value of the drugs was about HK$5,556.

6.  Under caution, the defendant admitted selling cocaine for money in order to settle his credit card debts.

Mitigation

7.  The defendant, aged 26, worked as a construction worker and lived with his parents before his remand.  He had 1 previous record, also involving “trafficking in a dangerous drug”.

8.  In mitigation, Ms So told the court that due to his background, the defendant associated with undesirable peers and developed the habit of taking drugs, mainly cocaine.  On the material day, when he went to buy drugs for himself, the defendant was offered to help delivering drugs for monetary reward.  Out of foolishness, he acceded to the request and was subsequently arrested.

9.  Ms So further submitted that while part of the drugs concerned were for trafficking, a significant part or even most of them were for the defendant’s self-consumption.  A urine test result in which the defendant was tested positive for cocaine and a number of authorities were submitted in support of this assertion.

10.  Lastly, mitigating letters written by the defendant, his mother, and his uncle were submitted.  They all ask this court for leniency.

Sentence

11.  It has been stressed time and again that drug trafficking is a serious crime.  Drug traffickers, even young ones, would most certainly be punished by a long-term imprisonment.

12.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine[1]. Where the quantity of cocaine is up to 10 grammes, a term of imprisonment between 2 and 5 years is called for.

13.  In the instant case, the narcotic involved is 4.79 grammes of cocaine.  For this quantity, I consider a starting point of 3 years and 3 months’ imprisonment to be appropriate.

14.  I have carefully considered the assertion that part of the drugs in question were for the defendant’s self-consumption.  I bear in mind that there is the risk of abuse in this avenue of mitigation, and the primary task of the sentencing court is to determine where the truth lies in a claim of self-consumption on a proper factual and evidential basis[2].

15.  I have also reminded myself of the decisions of the Court of Appeal in HKSAR v Wong Suet Hau[3]and HKSAR v Chow Chun Sang[4]. Where all or a significant proportion of the drugs were intended for self-consumption, the ensuing discount to sentence should fall somewhere between 10% and 25% of the starting point.

16.  In this case, for the 2.47 grammes of cocaine found inside the blue plastic bottle, as stated in the summary of facts admitted by the defendant, they were openly held by him, when he alighted from the vehicle, in a public place.  If they were indeed for his self-consumption, there was simply no reason for him to openly take them out under such circumstances.  As such, I do not find this part of the drugs to be for the defendant’s self-consumption.

17.  On the other hand, the remaining 2.32 grammes of cocaine were only found inside the vehicle.  There is no evidence to rebut the assertion that this part of the drugs was intended for self-consumption.  Coupled with the undisputed fact that the defendant was a drug addict and he was tested positive for cocaine shortly after his arrest, I find that the defendant’s claim cannot safely be ruled out.

18.  Under the circumstances, I have to accept that a significant proportion of the drugs were for the defendant’s self-consumption.  For this I am prepared to reduce the starting point by 6 months to 2 years 9 months.

19.  The defendant indicated on plea day that he would plead guilty to the charge, and is therefore entitled to a full one-third discount on his sentence. The sentence is thus reduced to 1 year and 10 months’ imprisonment.

20.  There being no other mitigating factors, the defendant is sentenced to 1 year and 10 months’ imprisonment.