HKSAR v. CHOW SHUI KEI

DCCC 972/2017

[2018] HKDC 1145

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 972 OF 2017

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one count of trafficking in a dangerous drug that is 11.04 grammes of a solid containing 10.18 grammes of cocaine. 

2.   The facts are straightforward in this case.  On 7 August 2017, the police laid an ambush in the bowling alley of Whampoa Garden.  It would appear that they did have a target in mind.  At about 10.50 pm, the defendant was seen opening a locker with a key and taking out a black plastic bag.  He was then intercepted by a police officer when he took out three smaller plastic bags from that bag.  The police found in those three smaller plastic bags, 23, 20 and 20 even smaller resealable plastic bags of cocaine.  That is the drugs of the charge. 

3.   The defendant admitted under caution that the cocaine belonged to him and it was all for his own self-consumption.  He told the police that he had paid $8,000 for the drugs in early August.  The locker was rented under another person’s name in July but he was the only one who had possession of the only key and he used the locker to store the cocaine.  He also told the police that he had a daily habit of consuming cocaine and he would consume approximately 0.4 to 0.6 grammes per day. 

4.   It is in the facts that the estimated street value of that amount of cocaine is $9,182.

5.   When the defendant was remanded in Lai Chi Kok Remand Centre, a urine test was conducted and a sample taken on 11 August, four days after his arrest.  The result was that it was negative for cocaine and a barrage of other drugs.  This is not consistent with a person who consumes cocaine on a daily basis.  The defendant now pleads guilty to trafficking this amount of cocaine.

6.   His best mitigation is his plea of guilty.  The defendant is not a man with a clear record, he has four previous convictions.  He does have a conviction for possession of dangerous drugs in 2007 and his most recent conviction is a trafficking conviction.  In 2010, he was sentenced to 6 years and 8 months by the High Court.  He was released from that term of imprisonment in September 2014 just under three years before his arrest for this offence. 

7.   In mitigation, I have heard that he is 29 years old, married and just prior to his arrest, became a father.  His daughter was born just three months before this offence.  Before his arrest, he was in fact working two jobs and earning about $20,000 per month to support his family.  Other than his immediate family, he also supports his mother who lives with them.  I have two letters submitted in mitigation before me, one from the defendant and one from his previous employer.  I have taken into account their contents and the mitigation put forward in those letters. 

8.   I have also taken into account the guidelines for trafficking cocaine.  Those emanate from the authority of The Queen v Lau Tak Ming [1990] 2HKLR 370.  The Court of Appeal have said where between 10 to 50 grammes is involved, a 5 to 8 year term of imprisonment would be appropriate.  Here, the purity of cocaine is 10.18 grammes, therefore a starting point of 5 years would be appropriate.

9.   Ms Yip, for the prosecution, has mentioned the element of enhancement for a persistent offender.  However, in my opinion, the defendant is not yet considered a persistent offender.  However, the defendant should be warned that a third trafficking conviction could be construed as persistent offending and if that is the case then the starting point of sentence would be enhanced for that reason. 

10.   Defendant has promised, particularly in his mitigation letter, that he will not reoffend.  He really should consider his child and the fact that she could grow up without him as a father figure in his life if he does continue to traffic dangerous drugs.  It may be lucrative and worth a lot for a short period of time but the old adage that crime does not pay rings true for drug traffickers in Hong Kong because eventually, and the police do an excellent job, as demonstrated, drug traffickers do get caught and serve substantial terms of imprisonment. It cannot be worth that amount of money to ruin what will be your own daughter’s life. 

11.   I have taken into account plea, mitigation, the quantity of drugs in this case and the guidelines set out in the authority I have referred to.  I will take a starting point of 5 years as appropriate here.  I find no other reason to discount that any further.  The defendant obviously is entitled to the discount for his plea and that is a discount of one-third.  After that discount of 20 months is applied to the starting point for this offence, the defendant is sentenced to 3 years and 4 months’ imprisonment.

12.   The starting point is 5 years, the discount will be 20 months.  After that discount is applied, the sentence is 3 years and 4 months.