HKSAR v. CHAN HIN WANG

DCCC 32/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 32 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 13 May 2016, the defendant was arraigned before this court on one charge of trafficking in a dangerous drug, a charge that was preferred against him by the prosecution pursuant to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He entered a plea of guilty to the offence and was convicted as charged.

FACTS

2.  At around mid-night, 27 August 2015, two police officers on anti-drink and anti-drug driving operation in Causeway Bay saw a private car PJ3799 (driven by the defendant) turn from Marsh Road into Gloucester Road at high speed and in an unsteady manner.  They stopped the car at a location outside Ground Floor, No.181-185 Gloucester Road, Wan Chai.  The defendant became increasingly nervous during the police enquiry, so the officers conducted a search on his car.  They found, in an open tray beneath the steering wheel, one plastic bag containing 14 packets of what was later determined to be 2.55 grammes of a solid containing 2.24 grammes of cocaine.  In addition, in the defendant’s left back trouser pocket was found cash in the sum of $13,900, together with one plastic bag which contained three plastic bags with a total of 90 packets of what was subsequently found to be 16.77 grammes of a solid containing 13.89 grammes of cocaine.  There were, in total, therefore, 19.32 grammes of a solid containing 16.13 grammes of cocaine seized, estimated to be worth $62,000.  Upon arrest and caution, the defendant had nothing to say with respect to the cocaine found in his car but admitted the packets found in his trouser pocket contained drug.  In subsequent video-recorded interviews, he told the police the following.  Unemployed and relying on comprehensive social security assistance since 2014, he had been a drug addict for some two years and would consume about 10 to 20 packets of cocaine every two to three days.  Before his arrest, he was driving a borrowed car to meet some friends in Kowloon.  He had, about a month ago, purchased the 104 packets of cocaine in bulk to take advantage of a discount; and he knew each packet contained roughly the same quantity of cocaine.  

MITIGATION

3.  The defendant, a person of previous good character, was born in Hong Kong in July 1993 and has just turned 22 at the time of the offence.  His parents divorced each other when he was still a child.  Single, he has received education up to Form Three level and has worked as a kitchen hand at various restaurants.  At the time of the offence, he lived with his mother and younger brother.  According to his Antecedents Statement, he has been addicted to cocaine for three years prior to the commission of the subject offence.     

4.  In her plea in mitigation, Miss Juliana Chow appearing for the defendant provides the court with further information on the defendant’s background.  The defendant’s father has seldom visited him since the birth of his younger brother.  That left the two young siblings to the care of the defendant’s mother.  At that time, the family lived in a village and has been at the centre of unwelcomed gossips and prejudices arising from matters of finance.  The family moved to live in a public housing estate.  Subsequently, the defendant ceased his studies, not because he failed to catch up with the curriculum, says Ms Chow, but because he has wanted to support his mother and younger brother.  He could only secure jobs with a low salary, however, and later took to consuming dangerous drugs.  During the several months leading to the commission of the subject offence, he has been unable to find any jobs, so he borrowed money from friends.  Ms Chow tells the court that the money seized in the defendant’s possession upon his arrest was part of a loan he has obtained from a friend.  This friend of his knew of his drug-dependency and provided him with dangerous drugs to consume and allowed him to delay repayment of the debts he owed him, on condition that the defendant would sell dangerous drugs for him.  Ms Chow submits that the defendant has had the cocaine seized in the car for his own use.  She relies on two mitigation letters, one from the defendant, the other his mother, and asks for the court’s leniency.  The letters describe the defendant as a person of a good nature, saying he is remorseful, he promises to reflect deeply on his wrongdoings, and that he hopes to be able to return to his family as early as possible.

5.  The probation officer who compiled the defendant’s background report has been able to verify the gist of Miss Chow’s submissions in mitigation.  The defendant’s family used to live in Lantau Island.  At that time, his father worked as an assistant in a hospital, while his mother was a room attendant at holiday homes.  The father took to gambling and he obtained loans from money-lenders.  In consequence, the family found itself disturbed by loan-sharks when the debts were unpaid.  That led, in the end, to the divorce of the defendant’s parents.  The defendant has been, says the report, able to perform academically and to behave himself in Form One and Form Two.  When he reached Form Three, he mixed around with a playful group of youngsters and became rebellious towards his mother.  He never returned to school after completing Form Three, and he began to work for a living.  He has contributed towards his mother’s household expenses when he could secure employment.   The defendant vows to sever his association with dubious peers and to turn over a new leaf.

CONSIDERATION

6.  The statutory maximum sentence for the offence of trafficking in a dangerous drug is imprisonment for life.[1]  The tariff sentence, after trial, for trafficking in 10 to 50 grammes of cocaine is a term of imprisonment between five and eight years (see R v Lau Tak Ming[2] and AG v Pedro Nel Rojas[3]).  In the defendant’s circumstances, the court is of the view that the lowest possible starting point is one of five years and three months’ imprisonment.

7.  With regard to the issue of partial consumption relied on as a mitigating circumstance, the Court of Appeal propounded in HKSAR v Wong Suet Hau & anor[4] a total of eight factors to be considered by the sentencing court, and the usual discount in sentence on this ground ranges from 10% to 25% (see HKSAR v Chow Chun Sang[5], HKSAR v Cheuk Kin Man[6], HKSAR v Law Num Chun[7], and HKSAR v Tsang Chung Keung[8]).

8.  Insofar as is relevant to the present case, the court notes that the defendant has had a clear record prior to his current conviction and thus has never been convicted of any trafficking offences in the past.  According to his own admissions, he has been heavily addicted to cocaine for some time.  He has purchased the cocaine in bulk, he said, for a cheaper price, and he has had a portion of the cocaine, namely those packets seized in the car, for self-use.  In all the circumstances, the court is prepared to grant him around 13% discount in sentence on the ground of partial consumption, thus bringing the starting point down from 63 months to 54.8 months. 

9.  The defendant is entitled to one-third discount for his guilty plea and previous good character; the final sentence is therefore one of three years’ imprisonment.

CONCLUSION

10.  For the offence of which he stands convicted, the defendant is sentenced to a term of imprisonment of three years.