HKSAR v. CHAN CHAK TUNG

DCCC 162/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 162 OF 2016

-----------------

-----------------

------------------------------------------------------

REASONS FOR SENTENCE

------------------------------------------------------

INTRODUCTION

1.  Upon his arraignment before this court on 30 May 2016, the defendant entered a plea of guilty to, and was accordingly convicted of, one charge of trafficking in a dangerous drug, preferred against him by the prosecution pursuant to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

FACTS

2.  On the evening of 11 December 2015, the defendant presented himself for customs clearance at the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal, Sheung Wan.  The customs officers conducted a search on him and found in his underwear a bag wrapped in tissue paper.  The bag had 56 plastic bags in it, which in turn contained what was subsequently found to be 11.2 grammes of a solid containing 10.1 grammes of cocaine, estimated to be worth some $12,000.  The defendant was arrested, and under caution, he said the plastic bags contained “coke” for his own use.  In addition, the customs officers found in the defendant’s possession two mobile phones and a one-way ticket for the Macau-bound JurboJet departing from Hong Kong that night.  In a subsequent cautioned interview, the defendant revealed that he had purchased the dangerous drugs for $15,000, packed in 56 packets by the seller.    

MITIGATION

3.  The defendant was born in November 1994 and is now 21 years old.  Single, he works as a cook, making $15,000 a month, and he lives with his parents and sister.  He has one criminal record which was entered against him in December 2010 for an offence of wounding or inflicting grievous bodily harm; he was sentenced to probation for 15 months.

4.  In his plea in mitigation, Mr Chan Chung appearing for the defendant submits that the defendant has been addicted to cocaine for four to five years.  He would consume cocaine four times a month, costing him about $1,000 to $1,500 on each occasion; in consequence, he would spend at most around $6,000 on cocaine.  It has been the defendant’s habit, says Mr Chan, to contribute towards his father’s as well as his mother’s spending, totalling $5,000 a month.  Coupled with his usual expenses, the defendant has been on a tight budget.  Mr Chan submits that on the day of the offence, the defendant had no money to buy cocaine.  Having failed to obtain cocaine from his supplier on credit, he agreed to deliver cocaine to Macau for a reward of $3,000, plus ten packets of cocaine, which the defendant intended to consume in Macau.  In addition, Mr Chan relies on several mitigation letters, written by the defendant, his father, his mother and his sister.  In brief, the letters show that the defendant now realizes his grave mistake, the defendant enjoys good relationship with the family, and his parents and sister blame themselves for failing to provide him with the necessary guidance, leading to the defendant’s offence.    

CONSIDERATION

5.  Trafficking in a dangerous drug is one of the most serious offences known to the law of Hong Kong; the statutory maximum sentence is life imprisonment[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]). The defendant has had the cocaine for exportation to Macau.  As Mr Chan has realistically acknowledged, this represents a more serious form of trafficking.  However, the court notes that the defendant is still relatively young, he has but a minor previous record, and he continues to have the support of his family.  In all the circumstances, the court is of the view that the proper starting point is one of five years’ imprisonment.

6.  Mr Kevin Wong, prosecuting on fiat, informs the court that the prosecution has no strong views on the reliance on partial consumption of the cocaine by the defendant as a mitigating circumstance and would leave the matter in the court’s hand.  On this issue, the Court of Appeal in HKSAR v Wong Suet Hau & anor[4] articulated a total of eight factors to be considered in the court’s determination with respect to the portion of the dangerous drugs intended for the defendant’s own use.  In addition, this court notes that 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]).

7.  In the instant case, the defendant has had a minor record prior to his current conviction and has never been convicted of any trafficking offences in the past.  According to Mr Chan’s plea in mitigation, the defendant has been addicted to cocaine for years.  His Antecedents Statement discloses that he has had a regular job with a stable income.  His immediate response to the caution administered on him by the Customs Officers was that he had the cocaine for self-use.  Mr Chan’s submissions make clear that the defendant has been promised close to one-fifth of the dangerous drugs for his own consumption.  In all the circumstances, the court is prepared to grant him a 15% discount in sentence on the ground of partial consumption, thus bringing the starting point down from 60 months to 51 months. 

8.  The defendant is entitled to one-third discount for his guilty plea; the final sentence is therefore one of two years and ten months’ imprisonment.

CONCLUSION

9.  For the offence of which he stands convicted, the defendant is sentenced to a term of imprisonment of two years and ten months.