HKSAR v. CHAN CHI MAN

DCCC426/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.426 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

A Brief Summary of Facts

2.  The defendant was intercepted at around 5:18am in the Tsim Sha Tsui area after he was observed by uniformed Police officers alighting a taxi.

3.  Upon search, 85 plastic bags containing suspected dangerous drugs were found hidden underneath the waistband of the defendant’s trousers. The defendant was arrested and cautioned. Under caution, he said the cocaine was for his consumption. Apart from the dangerous drugs, the defendant was found to have cash of HK$34,982 and Macau dollar $50 on his person at the time of his arrest.

4.  In a subsequent video recorded interview, the defendant said that he bought the cocaine from an unknown supplier for HK$14,000 at about 04:30am that day in Sham Shui Po. The defendant did not know the name of the supplier as the defendant only contacted the supplier through a person known as “Ah Kwai”. This “Ah Kwai” gave the defendant a piece of paper with a phone number on it and told him to wait at the Tai Po Road Gas Station.

5.  After the defendant got the cocaine, he went home to get changed and he was on his way to a party when he was arrested. The party was to be held at a bar in Tsim Sha Tsui. It was the intention of the defendant to share the cocaine that he had bought with the people at the party.

6.  The suspected dangerous drugs found on the defendant were confirmed by the Government Chemist to contain a total of 20.91 grammes of a solid containing 17.44 grammes of cocaine. The street value of the cocaine would have been HK$23,921. The defendant admitted in the amended summary of facts that at all material times, he possessed the dangerous drugs for the purpose of trafficking.

Previous convictions

7.  The defendant has 7 previous convictions with 2 relating to dangerous drugs, one in 2008 and one in 2009, both being for possession of dangerous drugs. Records of the defendant is admitted.

Mitigation

8.  The defendant is 52 years old. He received his education, Form 3 level, in China. He had been a hawker for 10 years. It is the defendant’s assertion that 4 grammes of the cocaine was to be for his own consumption at the party. I find that given the circumstances of the case, a proper calculation of the 13.44 gramme for trafficking purpose and the 4 gramme for self consumption would lead to a similar sentencing result, if not higher, than taking the whole of the amount as being for trafficking, which is in fact what the defendant had admitted to in the summary of facts and on which his conviction is based.

9.  The defendant has one previous marriage, subsequently divorced. They have a 22 year old son from that marriage and is a student in Hong Kong studying for his masters degree at City University. Before 2003, the defendant had operated 2 hotels or inns while he was also working as a hawker. But because of SARS, business collapsed and he had to close all his hotels and inns. The hotels and inns were in the Mongkok area. The failure in his business venture also led to his divorce in the 2003.

10.  In around 2002 and 2003, while working as a hawker, he had an accident injuring his back and is still receiving follow up treatment, with his next appointment in January 2013. The injury, the divorce and his financial problems contributed to his drug abuse which started in around 2003.

11.  The defendant is now living with his girlfriend and their baby daughter who is about 8 months old. The defendant was working as a hawker before his present remand.

Sentencing tariff

12.  The applicable guidelines for trafficking in cocaine, as confirmed in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370j. Sentencing for trafficking in cocaine for quantities between 10g and 50g is that of 5 to 8 years’ imprisonment. A strict mathematical application of the tariff would result in a starting point of about 66 months’ imprisonment for trafficking in 17.44 grammes of cocaine.

Sentence

13.  The maximum sentence for trafficking under s.4 of the Ordinance is that of life imprisonment and a fine of $5 million. This is an excepted offence.

14.  I adopt a starting point of 66 months’ imprisonment, reducing it by 20% based on circumstances on the papers which justify a lenient view to be taken of the facts. I will then grant the defendant the full one third discount in recognition of his guilty plea, bringing the final sentence to that of 35 months’ imprisonment.