HKSAR v. CHAN FAI MING

DCCC 605/2022

[2023] HKDC 536

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 605 OF 2022

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REASONS FOR SENTENCE

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1.  On his own plea and admission of the facts, the defendant was found guilty of one charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, and one charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the same ordinance.

Facts

2.  Around 2345 hours on 24 March 2022, police officers intercepted a taxi bearing registration number EE4487 (the taxi)  outside No 3 Old Peak Road in the Peak, Hong Kong.  At that time, the defendant was the driver and the taxi was not carrying any passenger.

3.  The defendant was searched and a plastic bag containing traces of a solid containing methamphetamine was seized from his right front trouser pocket.

4.  During a search of the taxi, the police seized from the storage area of the right front door next to the driver’s seat: (i)  4 plastic bags containing a total of 2.22 grammes of a solid containing 1.86 grammes of cocaine, (ii)  8 plastic bags containing a total of 2.44 grammes of a solid containing 1.96 grammes of cocaine, (iii)  25 plastic bags containing a total of 7.09 grammes of a solid containing 5.92 grammes of cocaine, and (iv)  one plastic bag containing a total of  0.29 gramme of a solid containing 0.26 gramme of cocaine.  On the front passenger seat, the police found and seized a bag containing HK$2,888.50 cash and 8 empty re-sealable plastic bags.

5.  Under caution, the defendant claimed to be a cocaine user; that the substance found in his trouser pocket was cocaine left over from his last consumption a few days ago, and the cocaine found in the taxi were bought by him around 2300 hours on 24 March 2022 for his own consumption for $9,000 from a person called “Gai Gor” (雞哥)  in a park in Lam Tin; he said he earned $10,000 odd a month as a taxi driver and gave $7,000-8,000 to his co-habiting girlfriend, and he bought the drugs in question with his gambling winnings.

6.  Rapid Oral Fluid Test conducted at 2351 hours on 24 March 2022 on the defendant revealed that he had not consumed any of the dangerous drugs targeted in the test[1].

7.  The estimated street value of the cocaine in question was about HK$17,915.

The defendant’s background

8.  Of the defendant’s 3 previous convictions, the only drug-related conviction was for possession of dangerous drugs in February 2018.

9.  The defendant is now 62 years old.  He was born in Hong Kong and educated here up to secondary school level.  He has been divorced twice and has 3 children from previous marriages.  He now lives with his wife whom he married in April 2023.  His mother passed away while he was remanded in custody for this case.  He is a taxi driver and, according to his counsel, earns about $7,000 per month.  He has high blood pressure and suffers from diabetes retinopathy.

Mitigation

10.  Defence counsel Ms Stephanie Ko submitted that the courts have equated cocaine with heroin for sentencing purposes, and that according to R v Lau Tak Ming and Others [1990] 2 HKLR 370, the tariff for trafficking in 10 to 50 grammes of heroin is 5 to 8 years’ imprisonment.  For trafficking in the 10 grammes of the cocaine involved in this case, the starting point would be 5 years’ imprisonment.

11.  She said the defendant committed the offences in order to make money to pay for his present wife’s father’s cancer treatment.

12.  According to counsel, the defendant knows he has done wrong and is ready to accept the consequences.  Apart from expressing his remorse in a letter addressed to the court, his remorse is also reflected in his guilty pleas, for which he should be given the relevant discount.

13.  Given the proximity in time, location and nature of the two offences, Ms Ko urged the court to consider ordering the sentences for both charges to be served concurrently.

Sentencing considerations

14.  Sentencing guidelines for trafficking in heroin as set out in Lau Tak Ming apply to trafficking in cocaine[2]. According to those guidelines, the tariff for trafficking between 10 grammes and 50 grammes of the drugs is 5 to 8 years’ imprisonment.

15.  The court agrees with defence counsel’s submission that the starting point for trafficking in the 10 grammes of cocaine particularised in the 2^nd charge should be one of 5 years’ imprisonment.

16.  The only effective mitigating factor is the defendant’s pleas of guilty, for which he will be given a one-third discount.  The sentence after discount is 40 months’ imprisonment for the 2^nd charge.

17.  As for the 1^st charge of possession of traces of a solid containing methamphetamine, in light of the minuteness of the quantity involved, which renders the latent risk of re-distribution virtually non-existent, I would impose a sentence of one month’s imprisonment after plea for this charge, and I order that this sentence is to be served concurrently with the sentence for the 2^nd charge.

18.  The defendant will serve a total sentence of 40 months’ imprisonment for both charges.