|
DCCC 575/2022
[2023] HKDC 1718
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 575 OF 2022
________________________
________________________
| Before: |
Deputy District Judge K Lo |
| Present: |
Ms Annie Lai, counsel on fiat, for HKSAR |
| |
Mr Lau Kai Yin, Roy, instructed by Au Yeung, Chan & Ho, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Trafficking in dangerous drugs (販運危險藥物) |
| |
[2] Driving without a valid driving licence (駕駛時無有效駕駛執照) |
| |
[3] Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車) |
________________________
REASONS FOR SENTENCE
________________________
1. The defendant is convicted on his own plea and agreement to amended Summary of Facts to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1st charge), and a charge of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (2nd charge), and a charge of using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (3rd charge).
Facts
2. On 11 February 2022 at around 0118 hours, police officers saw a private vehicle bearing registration mark WN7334 (“the Car”) which suddenly braked upon seeing them. Feeling suspicious, they intercepted the Car. The defendant then was the driver and a female was sitting at the front seat.
3. Upon a search of the Car:
(a) inside the inner door handle next to the driver’s seat, a bandage box was found and within which there was a plastic bag containing traces of a solid containing cocaine and a plastic bag containing 1.78 grammes of a solid containing 0.41 grammes of cocaine;
(b) inside the storage box at the driver’s seat, there were 3 plastic bags which contained a total of 2.3 grammes of a solid containing 1.54 grammes of cocaine, and 3 plastic bags which contained a total of 12.78 grammes of a solid containing a total of 9.74 grammes of methamphetamine hydrochloride (ICE);
(c) at the trunk of the car, a paper bag in which an electronic scale and some uncontrolled substance were found.
4. The defendant was arrested and cautioned by the police for trafficking in dangerous drugs. Government chemist confirmed the contents of the plastic bags as said above.
5. The estimated street value of the ICE seized is HK$6,825 and that of cocaine is HK$4,480 in February 2022.
6. The defendant then was in possession of $2,059.60 cash and 3 mobile phones.
7. At the material time, the defendant unlawfully trafficked the said dangerous drugs.
8. Upon checking the record from the Transport Department, it was revealed that the defendant did not have a valid driving licence. The police arrested the defendant and cautioned him for the offences of driving without a licence and using a vehicle without a third party risks insurance. Under caution, he admitted he did not have any driving licence in Hong Kong.
9. The registered owner of the Car was sought for. She said that she had not yet completed the transfer of ownership to the buyer of the Car, ie, the defendant, and that she did not know the defendant did not have a valid driving license.
10. On 11 February 2022, the defendant drove the Car on the road when he was not the holder of a valid driving licence and without third party insurance as required under the law.
Criminal Record
11. The defendant has one previous record, not similar.
Mitigation
12. The defendant is now 33 years old. He received education up to primary school in the mainland. He was divorced and has a daughter, aged 12, and a son, aged 5. The defendant took care of two children himself. His mother suffered from diabetes and bone spurs. His daughter also suffered from bipolar depression and had to receive follow-up treatments with continued drug adjustment in Kowloon Hospital.
13. It was said that the defendant used to work as a supervisor in an interior design company, earning HK$25,000 per month.
14. Defence counsel submitted 4 mitigation letters, namely letter from the Hong Kong Christian Kun Sun Association Limited, Well Charity Foundation Limited, the defendant’s mother and the defendant himself for the consideration of the court.
15. Defence counsel submitted that the defendant used to have a clear record at the time of the offence and that he is now deeply remorseful and he wish to start afresh. It was also said that his chance of reoffending is relatively low, especially now that he has secured a job upon his release.
16. For the 1st charge, the defence counsel asked this court to adopt a sentencing starting point of 81 months’ imprisonment. He submitted that the defendant’s position is a courier. He also urged the court to exercise its discretion and not to increase the sentencing starting point by reason that more than one type of drug is involved in this trafficking charge.
17. Defence counsel submitted the urine test reports confirmed the defendant is an abuser of ICE. It is said that the defendant had sufficient money to purchase the drugs although he was unemployed. It is said that he consumed about 1 gramme of ICE per day and that the ICE in the car represented about 2 week’s consumption for the defendant. He also referred this court to the cases of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, 香港特別行政區 訴 李偉豪 DCCC 396/2018, and 香港特別行政區 訴 陳明照 DCCC 351/2022.
18. For the 2nd and 3rd charge, defence counsel referred this court to the case HKSAR v Tse Chi Hong, DCCC 527/2018.
19. He also invited this court to take into consideration the totality principle and to arrive at an overall sentence. He suggested a concurrent sentence for the 3 charges, taking the same stance as His Honour Judge Douglas Yau did in the case of Tse Chi Hong.
Discussion
20. Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant including the mitigation letters and the cases cited.
1st Charge
21. On conviction upon indictment of this charge, the maximum sentence is a fine of HK$5 million and imprisonment for life.
22. Trafficking in dangerous drugs is a very serious offence. In usual circumstances, it is well-established that personal background and circumstances is not considered a valid mitigating factor. Likewise, committing the offence by reason of financial difficulty or to earn fast money to help the family again is not a valid mitigating factor.
23. The drugs involved in this case is 9.74 grammes of ICE and 1.95 grammes of cocaine.
24. Trafficking 9.74 grammes of ICE alone would attract a sentencing starting point of 82.75 months’ imprisonment. Using the conversion test, the sentencing starting point for trafficking 1.95 grammes of cocaine alone is 31 months’ imprisonment but as the sentencing starting point for trafficking in ICE is 36 months’ imprisonment, it is difficult to convert the sentencing for trafficking cocaine into sentencing for trafficking in ICE.
25. In the circumstances, the court would adopt a sentencing starting point of 84 months’ imprisonment because had all the drugs trafficked here were ICE, ie 11.69 grammes of ICE, the sentencing starting point would be 85.4 months’ imprisonment. So it will be realistic and reasonable to adopt this sentencing starting point of 84 months as if the defendant was trafficking 10 grammes of ICE, ie an additional 0.26 grammes of ICE instead of the 1.95 grammes of cocaine.
26. It is well-established that where there are more than one type of drugs involved, the same constitute an aggravating feature in sentencing. In this case, it is clear that the defendant is not an abuser of cocaine. Accordingly, the court sees no reason not to enhance the sentencing starting point and the sentencing starting point is therefore enhanced by 3 months, taking the sentencing starting point to 87 months’ imprisonment.
27. Whilst the court accepts that the defendant is an abuser of ICE, the court does not accept his contention that a significant proportion of the ICE seized was for his own consumption. Nevertheless, by reason that he is an abuser in ICE, the court is willing to exercise its discretion and to adjust the sentencing starting point downwards by 3 months, back to 84 months’ imprisonment.
28. The defendant has pleaded guilty which is the most valid mitigating factor. He is therefore entitled to full one-third sentencing discount. It is well-established by authorities that the defendant’s remorse as indicated in the mitigation letters and his previous good character has already been subsumed in the one-third sentencing discount by reason of his guilty plea.
29. In the circumstances, the defendant is sentenced to 56 months’ imprisonment for the 1st charge.
2nd Charge
30. On the first conviction of this offence, a person is liable to a fine of HK$5,000 and to imprisonment for 3 months.
31. This is the first conviction of the defendant and this court finds the appropriate sentencing starting point is 9 weeks’ imprisonment.
32. The defendant is afforded one-third sentencing discount by reason of his guilty plea. He is therefore sentenced to 6 weeks’ imprisonment for this charge.
3rd Charge
33. A person convicted of this offence is liable to a fine of HK$10,000 and to imprisonment for 12 months.
34. This is the first conviction of the defendant. The commission of this offence pose risk to other road users and properties around. The court finds the appropriate sentence starting point is 6 months’ imprisonment.
35. Again, he is afforded one-third sentencing discount by reason of his guilty plea and is therefore sentenced to 4 months’ imprisonment for this charge.
36. On conviction of this charge, the court shall, unless for special reasons thinks fit to order otherwise, order the defendant be disqualified from holding or obtaining a driving licence of a vehicle for such a period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.
37. This court sees no special reason in this case and therefore the court now orders the defendant be disqualified from holding or obtaining driving licence of any class for 2 years from today.
Totality
38. Although commission of the 2nd and the 3rd charge is part of the circumstances under which the 1st charge was committed, the nature of the 1st charge and the 2nd and 3rd charge offences are entirely different. When sentencing the defendant in respect of the 1st charge, the court did not take into consideration the commission of the 2nd and 3rd charge. This court does not find it appropriate to have sentence for the two sets of offences to be served concurrently as the commission of the 2nd and 3rd charge clearly adds the culpability of the defendant in the case.
39. Having regard to the total culpability of the defendant in the whole incident, this court considers that the total sentence of 60 months’ imprisonment just and proportionate. Accordingly, sentence of the 2nd charge shall run wholly concurrent with the sentence of the 3rd charge. The sentences of the 2nd and 3rd charge to run wholly consecutive to the sentence of the 1st charge.
40. The total sentence for the defendant in this case is therefore 60 months’ imprisonment.
|
( K Lo ) |
|
Deputy District Judge |
|