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DCCC 26/2020
[2020] HKDC 1169
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 26 OF 2020
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| Present: |
Ms Grace N Y Au, PP of the Department of Justice, for HKSAR |
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Mr Kevin Lee Dong Joo, instructed by Hui & Lam LLP, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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REASONS FOR SENTENCE
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Charge and Facts
1. Defendant pleads guilty to one count of trafficking in dangerous drugs on the basis that he was taking the drugs out of Hong Kong at that time. He was leaving for Macau then. Defendant was intercepted by Customs and Excise officers at the Hong Kong-Macau Ferry Terminal in Sheung Wan on 28 August 2019.
2. Defendant is a Korean national. He went to Macau for sightseeing on 26 August 2019. On 28 August 2019, he took time to come to Hong Kong for brief shopping and to buy dangerous drugs.
3. In court, Defendant says he had the drugs entirely for his own use. Prosecution do not accept that. After a Newton hearing, I find Defendant had the drugs entirely for his own use. He is guilty of trafficking in dangerous drugs merely because he was taking those drugs out of Hong Kong.
4. There are three types of drugs: (a) 85 Ecstasy tablets containing 17.81 grammes of 3,4-methylenedioxymethamphetamine; (b) 5.45 grammes of a crystalline solid containing 5.37 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’; and (c) 8.89 grammes of herbal cannabis.
Record
5. Defendant is a Korean national. He is aged 39 now. He has no criminal record in Hong Kong. Defence Counsel says Defendant also has a clear record in Korea.
Mitigation
6. Defendant is a car salesman in Korea. He is not married and lives with his aged parents. He is the sole breadwinner of the family of three.
7. Counsel submits letters written by Defendant and his mother.
8. Defendant’s mother says she is seriously ill now, however, there is no medical proof of that. The mother speaks well of Defendant and asks the court to be lenient towards Defendant.
9. Defendant himself says he was ignorant of the law of trafficking and he had no intention to traffic in those dangerous drugs. He bought those drugs in Hong Kong for his own use because they were cheaper. Defendant says he is remorseful now and would not offend again. He asks for leniency so that he can go back to Korea to look after his ill mother.
10. Defence Counsel mentions three cases: CACC 318/2013, HKSAR v Chan Yuk Leong; CACC 135/2011, HKSAR v Chow Chun Sang; and CACC 273/2017, HKSAR v Choi Chun Wo. Counsel asks the court to adopt the combined approach in sentencing and to apply the right checking test to sentence defendant.
11. Counsel emphasises that Defendant is guilty of trafficking in dangerous drugs only because he was bringing those drugs out of Hong Kong at that time. Yet, Defendant really had those drugs for his own use.
12. Counsel says of the three types of drugs, the 8.89 grammes of herbal cannabis should be regarded as insignificant in sentencing because the ‘Ice’ and the Ecstasy in question are much more significant.
13. Defence Counsel agrees with Prosecutor’s calculation of the initial starting point for the ‘Ice’ and the Ecstasy in question, namely 5 years and 2 months’ imprisonment for the ‘Ice’ and 4 years and 5 months’ imprisonment for the Ecstasy.
14. The combined weight of the ‘Ice’ and the Ecstasy is 23.18 grammes (referring to the narcotics part).
15. Under the absurdity test, the starting point of those 23.18 grammes of dangerous drugs would be 7 years and 11 months’ imprisonment if they were considered all as ‘Ice’.
16. Under the conversion test, the starting point of such quantity of combined drugs would be 6 years and 6 months’ imprisonment.
17. Under the ratio test, the starting point of such combined drugs would be 5 years and 5 months’ imprisonment.
18. Defence Counsel asked the court to adopt 5 years and 5 months’ imprisonment as the initial starting point for all the drugs and give Defendant one-third discount for his plea of guilty and a further one-fourth discount for the fact that this was a technical trafficking case, namely Defendant was taking the drugs out of Hong Kong but he had the drugs entirely for his own use.
Sentence
19. I agree with Defence Counsel that the herbal cannabis component is rather insignificant when compared with the ‘Ice’ and the Ecstasy in question.
20. I also agree that the combined approach is appropriate in the present case.
21. Of the ‘Ice’ and the Ecstasy, the ‘Ice’ component is more potent and also attracts a higher starting point. It is 5 years and 2 months’ imprisonment by itself, while the Ecstasy, when considered individually, would attract a starting point of 4 years and 5 months’ imprisonment.
22. I do not agree with Defence Counsel that 5 years and 5 months’ imprisonment is the right initial starting point in this case. I think for the Ecstasy and the herbal cannabis, 1 year and 4 months’ imprisonment should be added to the ‘Ice’ base of 5 years and 2 months’ imprisonment, making up a total of 6 years and 6 months’ imprisonment for all the three drugs.
23. I am prepared to reduce that starting point by three months to 6 years and 3 months’ imprisonment because Defendant is a foreign national and he has a previous clear record.
24. Defendant pleads guilty in good time. He is entitled to one-third discount.
25. In CAAR 11/2010, Secretary for Justice v Chan Chun Fai, that defendant brought ‘Ice’ out of Hong Kong to Macau. The Court of Appeal finally gave him a 25 per cent discount for that factor. That is also what I would do in the present case.
26. To summarise, I adopt 6 years and 3 months’ imprisonment as the adjusted starting point for Defendant’s trafficking the ‘Ice’, the Ecstasy and the herbal cannabis. After one-third discount for his plea of guilty and one-fourth discount for his trafficking, ie taking the drugs out of Hong Kong but entirely for his own use, I sentence Defendant to 37 months and 2 weeks’ imprisonment.
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