|
DCCC506/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 506 OF 2011
----------------------
----------------------
|
Before:
|
Deputy District Judge A. Kwok
|
|
Date:
|
31 August 2011 at 12.19 pm
|
|
Present:
|
Mr Edward McGuinniety, counsel on fiat, for HKSAR
Ms Yiu Kwong-shun, Eliza, instructed by Cheung, Wong & & Associates, assigned by the Director of Legal Aid, for the Defendant
|
|
Offence:
|
Trafficking in a dangerous drug (販運危險藥物)
|
--------------------------
Reasons for Sentence
--------------------------
The Charge
1. After trial, the defendant is convicted of a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.
2. The subject matter of the drugs is 29.23 grammes of a solid containing 26.4 grammes of cocaine.
3. The prosecution case is very simple and has just been set out by me in the reasons for verdict.
4. Put shortly, the defendant was spotted by two uniformed police officers, PW1 and PW3, in the early hours of 21 March this year in a rear lane near Chungking Mansion in Tsim Sha Tsui. As the defendant was acting suspiciously and he started to run, PW1 gave chase and before the defendant was finally intercepted, he was seen by PW1 that he threw away two packets of suspected dangerous drugs onto the ground.
5. The two packets of drugs were later examined by the government chemist. It was found to be one plastic bag containing four plastic bags containing a total of 23.41 grammes of a solid containing 21.14 grammes of cocaine, and one plastic bag containing 5.82 grammes of a solid containing 5.26 grammes of cocaine. The street value of the cocaine, according to the police expert and which was also agreed by the defence, was said to be HK$29,493.
6. Later, when the defendant was searched in the police station, he was found to have with him cash of more than HK$60,000.
The Background and the Record of the defendant
7. The defendant is 34 years of age. He is single and was born in Hong Kong. He had only Form 2 education level. Looking at his record, he had a total of 12 criminal records and 9 of which are all drugs-related.
8. Apart from the possession of dangerous drugs records, for which he has been given probation and later sentenced to the DATC, of significance was his last two criminal records. The penultimate one being one of manufacturing dangerous drugs and he was sentenced by the High Court back in 2007 for a period of 2 years’ imprisonment.
9. His last record was in 2008 which involved two charges of trafficking in dangerous drugs and one charge of possession of equipment fit and intent for smoking dangerous drugs. In the District Court, he was given a total sentence of 50 months’ imprisonment.
10. He was last discharged from prison in November 2010.
11. During the trial, the defendant had already produced a medical report concerning his injuries of both hands. Due to some bacterial infections back in 2003 for which he had received an operation, he has suffered some deformity in both hands. There was numbness and mild impairment of the activities of both hands.
12. Before his injury, I was told that he worked as a crane driver. After he was discharged from prison, he worked as a hawker earning an income of $9,000 per month. His father had passed away and his mother, aged 65, is now living alone in Hong Kong and is depending on the defendant’s support.
Sentencing considerations
13. The present case, as it were, involved the trafficking of a hard dangerous drug known as cocaine.
14. Trafficking is, of course, a very serious offence and, as said in
R v Lau Tak Ming CACC230/1989, anybody who was involved in trafficking of dangerous drugs will expect no mercy from the court.
15. Lau Tak Ming (supra.) has set down the guideline and tariff for trafficking in heroin. Later, the Court of Appeal had also held that when it comes to trafficking in cocaine, the tariff sentence laid down in
Lau Tak Ming also applied. (See AG v Pedro Nel Rojas CAAR15/1993)
16. The defendant is also a repeated offender. Clearly, he had not learned his lessons although he has been dealt with quite severely in the past.
17. In mitigation, Miss Yiu, counsel of the defendant, informed the court that he was influenced by some bad elements and his friends when he was young and he came to be a drug addict himself.
18. Apparently, as the record shows, although the defendant was given many chances by the court in numerous occasions to kick the habit in the DATC, he did not have the determination and the will to reform. It would not be a surprise to see the path that the defendant was going down in the last number of years.
19. Applying the tariff in
Lau Tak Ming (supra.), for a quantity of drugs between 10 to 50 grammes, the sentence is between 5 to 8 years.
20. As Miss Yiu had properly acknowledged, for the present quantity, the sentence should be well over 6 years.
21. As the defendant is clearly a repeated offender, I will also consider increasing the sentence. I stress, however, that this is not a sentence on his past record but clearly I need to pass a sentence with sufficient deterrent effect and also I have a duty to protect the public at large.
22. In the end, I will increase the sentence for
3 months.
23. In serious cases like this, family circumstances virtually play no part in any mitigation.
24. The defendant fought his case and he lost. Therefore he stands to lose the usual one-third discount which is normally given to a defendant who is remorseful and pleads guilty to the charge.
Order
25. Therefore the sentence the defendant is going to receive is one of 6 years and 3 months’ imprisonment.
|
(A. Kwok)
Deputy District Judge |
|