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HCCC 264/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 264 OF 2015
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| Date: |
29 July 2016 at 4.06 pm |
| Present: |
Mr Phil Chau, on fiat, for HKSAR
Mr James H M McGowan, instructed by George Chan & Co,assigned by DLA, for the accused
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| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant, Limbu Deepak, is convicted after trial of the offence of trafficking 22.1 grammes of ‘Ice’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The facts show that the defendant was stopped and searched by the police when he came out of his hut during a raid conducted by the police on 4 December 2014 on persons gathered outside his hut at the open area. From his right front trousers pocket, one packet containing 22.1 grammes of ‘Ice’ was found. The street value of the ‘Ice’ was over HK$9,000.
The defendant was unemployed at the time and he was living at a makeshift hut under the Ferry Street flyover. There was no direct evidence of trafficking, and by the unanimous verdict, the jury must have drawn the only reasonable inference from the facts they found proved that the defendant had the ‘Ice’ in his possession for the purpose of unlawful trafficking.
Defendant’s background
The defendant was born in Nepal, but is now a Hong Kong permanent resident. He is 38 years of age and is divorced.
His ex-wife and an 8-year-old daughter reside in Nepal, so does his mother. His father lives in the UK.
The defendant is a self-confessed drug addict of a long standing, and he had previous convictions of possession of dangerous drug and Part I poison. He had been sentenced to a DATC before in 2006 and in 2012. But clearly, the treatment did not work because the defendant relapsed into drug-taking again and again. Apart from the drug-related convictions, the defendant also had previous convictions such as misleading the police and possession of a prohibited weapon.
Mitigation
Mr McGowan, mitigating on behalf of the defendant, pointed out the damaging relationship the defendant had with dangerous drug over the years. As the defendant had been in custody since December 2014, it is hoped that the defendant could really kick the bad habit this time. This is the first time the defendant is convicted of trafficking in a dangerous drug, and Mr McGowan asked me to be as lenient as possible.
The sentence
A person convicted of trafficking in a dangerous drug, on indictment, is liable to be sentenced to prison for life and to a fine of HK$5 million. It is a very serious offence. According to the guidelines set down by the Court of Appeal in the case HKSAR v Tam Yi Chun, trafficking between 10 to 70 grammes of ‘Ice’, the starting point after trial is one between 7 and 11 years.
After considering all the evidence in this case, including the role played by the defendant, a proper starting point for a first offender will be 8 years. Although the defendant had previous convictions, some of them are drug-related in the form of possession of dangerous drugs and Part I poison, I will not enhance this starting point of 8 years. There are no other aggravating factors that I can see to enhance the sentence.
The defendant pleaded not guilty to the charge so he cannot avail himself to the deduction normally given to someone who pleads guilty. I do not see any mitigating factor to reduce this starting point of 8 years either.
So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 8 years’ imprisonment.
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