HKSAR v. TAI CHEUK MAN

DCCC 613/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 613 OF 2015

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Reasons for Sentence

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1.  In these proceedings, the defendant, Tai Cheuk-man, is charged with, pleaded guilty to, and convicted of the following counts:

(i) “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134;

(ii) “Possession of a dangerous drug”, contrary to section 81(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and

(iii) “Possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  During an anti-dangerous drugs operation in Sheung Shui on 2 May 2015, police officers intercepted the defendant outside a unit in Tin Ping Estate.  He had a key to the unit and HK$11,080 cash on him.

3.  Upon search of the unit, the police seized a total of 54 packets of cocaine (total weight 8.27 grammes), an electronic scale, a pair of scissors (all containing traces of cocaine), and a total of 139 resealable plastic bags in two bundles.

4.  Under caution, the defendant admitted he sells the cocaine to earn some money.  The street value of the cocaine is about HK$17,454 (Charge 1).

5.  In addition, the police also found a piece of tinfoil with traces of methamphetamine (generally known as “Ice”) and a device made of a plastic bottle connected to a straw and a glass bowl with some liquid inside.

6.  Under caution, the defendant admitted that the “Ice” was his and the other items were used for inhaling the same (Charges 2 and 3).

Sentencing Consideration

7.  There is very clear sentencing guideline for trafficking in cocaine.  Both the prosecution and defence agree that the Court of Appeal pronouncements in the cases of Lau Tak Ming[1]  and Pedro Nel Rojas[2] are still good law.

8.  The present case falls within the “up to 10 grammes” bracket, warranting a term of imprisonment for 2 to 5 years.  Since the exact quantity is of 8.27 grammes, the appropriate starting point should be 48 months.

9.  Having taken into account the circumstances of the case, in particular the presence of packaging materials and the large number of packages involved, I am satisfied that 48 months is the proper starting point. To give credit to his guilty plea, it is reduced to 32 months.

10.  In addition, the defendant is convicted of two counts relating to consumption of dangerous drugs, in this case, “Ice”.

11.  Normally, the sentencing judge, upon conviction of the same, would have to call for a report for his suitability to be admitted to Drug Addiction Treatment Centre under section 54A of the Dangerous Drugs Ordinance. However, by reason of his conviction of Charge 1 and that his sentence will exceed 9 months’ imprisonment, it will not be necessary in this case.

12.  In respect of Charges 2 and 3, I note that the quantity of “Ice” found was minimal, and that since there was only one set of apparatus, it is unlikely the defendant will be sharing the drugs with other persons.

13.  In the case of Mok Cho Tik[3], the Court of Appeal has stated that the sentence order for possession of dangerous drugs for a normal user is one of 12 to 18 months, but the sentencing court has discretion to order lesser terms as the circumstances may warrant.

14.  In the circumstances of the present case, I consider 3 months’ imprisonment appropriate as a starting point for Charges 2 and 3.  It is reduced to 2 by reason of his guilty plea.

Totality Principle

15.  The Court of Appeal in the Chu Hui Yuen[4] case, citing with approval its earlier decision of Yip Yuet Ho[5], takes the view that if the possession charge is coupled with a trafficking charge and the former only involved a small quantity, even if the quantity for possession were included in the trafficking charge, it would make no difference in the final sentence order.  Therefore, it would not be reasonable to order the sentence for possession to run consecutive to those imposed for trafficking.

16.  On the facts of the case of Chu Hui Yuen, the Court of Appeal ordered the 3 months’ imprisonment order for possession to run concurrently with the sentence from the trafficking charge.

17.  In the present case, the situation is almost identical.  I therefore consider it appropriate to order that the sentences for Charges 2 and 3 to run concurrently and to run concurrently with Charge 1.

Mitigation

18.  I turn to consider the mitigation as put forward by the defence lawyer.

19.  Of course, the most valid and useful mitigation is the fact he pleads guilty. The defendant is aged 22, a relatively young man.  He has a minor conviction earlier this year for which he was sentenced to a probation order.  By committing the present offence, he is in breach of the probation order.

20.  Although the defendant is a relatively young man, I do not consider his age constitutes any valid mitigation; as the sentencing principle for “trafficking in dangerous drugs” is one of deterrence.  Moreover, it is generally accepted that even if the offender was a person of clear record and that he was a very young person, the court still would not consider it a mitigating factor because otherwise young persons would be encouraged or would be used by others to commit such offences.

21.  The court is also told that the defendant lives with his parents, but this again, is not a valid factor which might justify my exercise of any discretion to give him a lighter sentence.

22.  I therefore order that for the 1st count, the defendant is sentenced to 32 months’ imprisonment; for the 2nd and the 3rd, 2 months, all to run concurrently.

23.  The Probation Order is hereby discharged.