HKSAR v. LI CHUN PING

DCCC 105/2018

[2018] HKDC 1141

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 105 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Facts

2.  On 6 Nov 2017 at around 20:20 hours, police officers were conducing anti-narcotics operation near the premises as particularized in the charge. 

3.  On 7 Nov 2017 at around 01:25 hours, the defendant appeared at the door of the premises and intended to get inside.  When the door was opened, the defendant was intercepted by the police.  Upon search, 1 plastic bag containing 3 transparent re-sealable plastic bags containing a total of 10.5 grammes of methamphetamine hydrochloride was found inside the left sleeve of the defendant’s jacket.

4.  The defendant was arrested.  Under caution, Defendant said the packet was for his own consumption.

5.  At the time of arrest, the defendant has HK$616 and 3 mobile phones.

6.  In subsequent video-recorded interview, the defendant admitted that he bought the dangerous drug in Yau Ma Tei for HK$3,500 for self-consumption, that he was unemployed and that he worked as a transportation worker till February 2017.

7.  The street value of the drug was around HK$4,480.

Mitigation

8.  The defendant is aged 34, single and lives with his family.  He used to work as a transportation worker until February 2017.  Since then, he worked as odd job delivery worker earning about HK$9,000 per month. Both his parents used to work but his father stopped working after he was diagnosed to suffer from lung cancer in May 2018.  His mother also quitted the job in order to take care of his father and the grandchildren.  The defendant has 5 criminal conviction records, all of which are gambling related.

9.  In mitigation, it was submitted that the defendant was a drug user.  He made similar admission under caution. It was submitted that the defendant planned to share one of the bags of drug with his friends.  Urine test conducted by Lai Chi Kok Reception Centre on 9 November 2017, two days after the arrest, showed that the defendant was tested positive for Amphetamine.  In the circumstances, counsel for the defence referred to HKSAR v Tam Ling Yuen, CACC 159/2015 and submitted that the defendant should be granted a discount for self-consumption.  It was also submitted that given the defendant had written to court indicating his intention to plead guilty before the first day of trial, the court was urged to grant him a discount for as much as possible.  Finally, it was submitted that the defendant already regretted for not being able to take care of the father and support the family at this stage and had promised not to re-offend.  The court was urged to impose a lenient sentence on the defendant.

Sentence

10.  This is the defendant’s first conviction for trafficking in dangerous drug.  The drug involved is 10.5 grammes of methamphetamine hydrochloride.  The Court of Appeal has laid down sentencing guidelines for trafficking in methamphetamine hydrochloride (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691). According to the guidelines, for trafficking in 10.5 grammes of ice, the appropriate starting point is 7 years and I will adopt this as the starting point for the charge.

11.  Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption. In the present case, there is no evidence to rebut the allegation of self-consumption.  In the circumstances, I am prepared to accept that a substantial part of the drug was for his own consumption and therefore reduce the starting point by 16 months to reflect the discount for self-consumption. The starting point is therefore reduced to 68 months. 

12.  The defendant indicated his intention to plead guilty after trial dates were fixed but before the first day of trial.  According to the case of HKSAR v Ngo Van Nam & Anor [2016] 5 HKLRD 1, subject to the overriding discretion of the judge in sentencing, the defendant in such circumstances is to be afforded a discount between 20% and 25%.  In the circumstances of this case, I consider the appropriate discount to be 25%.  The sentence is reduced to 51 months for the defendant’s plea.

13.  Although I have sympathy for the difficulties faced by the defendant’s father and his family, family hardship is generally not a mitigating factor.  Apart from the above mitigating factors, I do not see other mitigating factor justifying further reduction of sentence. The defendant is therefore sentenced to 51 months’ imprisonment.