HKSAR v. POON NIM CHO

DCCC 1247/2023

[2024] HKDC 1955

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1247 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and ketamine.

Summary of Facts

2.  About 1:26 a.m. on 31 March 2023, PC 23763 (PW1)  and teammates were on a police vehicle patrolling on Tai Loong Street in Kwai Chung.  They saw a light goods vehicle RD224 ("the LGV")  parked near lamppost AC1233 with the defendant in the driver's seat.  PW1 approached the defendant, revealed his police identity and instructed him to alight from the LGV.  The defendant complied with PW1's request.

3.  The LGV was searched and the following items were found :-

In the compartment near the driver's seat:

(i)  1 plastic bag (E1)  containing 10 plastic bags which contained a total of 2.98 grammes of a solid containing 2.68 grammes of cocaine (collectively E2);

In a black eye glasses case (E3)  placed on the dashboard:

(ii)  1 plastic bag which contained 0.18 gramme of a solid containing 0.16 gramme of cocaine (E4);

(iii)  1 plastic bag which contained 0.55 gramme of a solid containing 0.43 gramme of ketamine (E5);

In the compartment near the front passenger seat:

(iv)  1 plastic bag which contained 0.17 gramme of a solid containing no dangerous drugs (E6);

In the upper front compartment:

(v)  a cigarette box (E7)  containing 18 plastic bags which contained a total of 5.00 grammes of a solid containing 4.31 grammes of cocaine (collectively E8);

(vi)  $2,420 cash (E14);

In the lower front compartment:

(vii)  1 plastic bag (E9)  containing 9 plastic bags which contained a total of 2.21 grammes of a solid containing 1.71 grammes of cocaine (collectively E10);

(viii)  1 plastic bag (E11)  containing 10 plastic bags which contained a total of 2.39 grammes of a solid containing 1.89 grammes of cocaine (collectively E12); and

(ix)  1 plastic bag which contained traces of a solid containing cocaine (E13).

4.  The defendant was arrested for "trafficking".  Under caution, he said "I only sold dangerous drugs because I was in need of money and in (financial)  hardship. The dangerous drugs you found in the vehicle were to be sold by me as well."

5.  In his video recorded interview, the defendant admitted having used the LGV as a delivery driver.

6.  The defendant now admits that he had unlawfully trafficked in all the dangerous drugs found in the LGV.

Mitigation & Sentence

7.  The defendant is 38 and has a clear record.  Defence counsel Mr. Lam informed me that the defendant is married with a daughter (aged 5).  At the time of the offence, he was unemployed.  In mitigation, Mr. Lam submitted that the defendant's role was only a courier.  He was cooperative with the Police and made frank admissions. His wife has a job at a fast food restaurant; she has income to support their daughter.

8.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime. 

9.  For the purpose of sentencing, I am prepared to ignore the negligible quantity of ketamine (namely E5).  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

10.  In this case, the defendant trafficked in 10.75 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 1 month.  For ease of calculation, I adopt 5 years as the starting point.  With the timely guilty plea, the sentence is reduced to 40 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 40 months' imprisonment.