HKSAR v. ZHU CHUN WAI

DCCC 114/2022

[2022] HKDC 819

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 114 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to the Summary of Facts.

Facts

2.  On 8 September 2021 at around 2345 hours, police on anti-crime patrol spotted the defendant then sitting in the rear compartment of a taxi, acting furtively.  Police intercepted the taxi at Tseung Kwan O Tunnel Road.  Upon search, 2 transparent plastic bags containing 18 and 38 smaller bags of solid were found concealed within the defendant’s underpants.  Under arrest and caution, the defendant stated that the ‘coke’ was for his own consumption and asked for a chance.

3.  Government’s chemist’s certificate confirmed that the 18 plastic bags contained a total of 6.99 grammes of a solid containing 5.19 grammes of cocaine, and the 38 plastic bags contained a total of 6.02 grammes of a solid containing 5.24 grammes of cocaine. 

4.  The defendant also had in his possession cash of $13,810 and 2 mobile phones.

Criminal Record

5.  The defendant has a clear record.

Mitigation

6.  The defendant is aged 17.  He was born in Hong Kong.  He is single, received education up to Form 3 level and has all along been relying on his family for a living.  He had been working as an apprentice between the year 2020 and 2021.  At the time of the arrest, he was unemployed. 

7.  He lived with his family.  His father is a construction site worker and his mother is a housewife.  He has an elder brother, a salesman, and 2 younger siblings, both students.

8.  Sentencing guideline for trafficking in cocaine is laid down in the case of Attorney General v Pedro Nel Rojas, CACC 15/1993, which set out trafficking in 10.43 grammes cocaine, the appropriate sentencing starting point should be 60 months’ imprisonment.

9.  It is said that the defendant has entered a timely guilty plea and he has shown his remorse.  Defence counsel urged for one-third sentencing discount on his behalf.

10.  It is also submitted that at the time of the offence, the defendant is a cocaine user and he trafficked the drugs to sustain his drug addiction.  This is evidenced by the fact that the urine test performed on the defendant found the urine was tested positive of cocaine.  Defence counsel thus said that if the drugs in question were not delivered in the same night, then the defendant might consume some of the drugs for his own use.  He therefore asked this court to exercise discretion and give the defendant a small sentencing discount by reason of his drug addiction and his use of possibly part of the drugs in question.

Discussion

11.  Before sentencing, this court has carefully considered mitigation by defence counsel.

12.  Maximum sentence on conviction of this charge upon indictment is a fine of $5 million and imprisonment for life.

13.  As conceded by defence counsel, for trafficking of cocaine following the guideline, the sentencing starting point is 5 years’ imprisonment. 

14.  The offence is a very serious offence and personal background is seldom a mitigating factor, and therefore, the fact that the defendant committed the present offence in order to fund his own drug addiction is not a valid mitigating factor. 

15.  Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea, of which he is entitled to full one-third sentencing discount.

16.  Urine test performed on the defendant confirmed that the defendant is a cocaine user.  Defence counsel submitted that should all the dangerous drugs not be dispatched the same night, the defendant might consume some of them but not a significant portion. 

17.  In view of the urine test report, this court is willing to accept that the defendant is a cocaine abuser.  In view of the quantity, the packaging and the circumstances under which the defendant was intercepted, it is difficult for the court to accept that a significant portion of the drugs was for his own consumption, but this court is willing to accept that a very small quantity of the dangerous drugs would be consumed by the defendant.  For this reason, the court is willing to further discount the sentence by 2 months.

18.  The defendant is therefore sentenced to 3 years and 2 months’ imprisonment in the present case.

19.  The defendant should know by now that unless he quit the drug addiction, he would expect himself from now on going in and out of prison for the rest of his life.  He should seriously consider what he should do with his own life.