HKSAR v. FAURE STEPHANE

DCCC 205/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 205 OF 2015

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Reasons for Sentence

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1.  Yes, the defendant has pleaded guilty to three offences, firstly being possession of a poison which are four tablets described as sildenafil, better known as Viagra. The 2nd charge is trafficking in a dangerous drug which is effectively trafficking 16.5 grammes of cocaine. That is narcotic content. And the 3rd charge relates to the possession of a small quantity of cannabis. That is 3 grammes of cannabis resin.

2.  The facts have been agreed by the defendant. They show the offence was detected on New Year’s Eve of 2014, and the defendant was stopped by what is described as an anti-dangerous-drug operation in Wanchai in the early hours of the morning of 31 December.  There was a search of the defendant’s pocket.  A Viagra tablet was found, and he was arrested. 

3.  He was then taken back to his own residence where a search was conducted.  The following items were found.  On a table, the 3 grammes of cannabis resin were discovered.  Together with that were two rolled-up HK$10 banknotes, and it was found that they both contained traces of a powder containing cocaine, and also a metal sieve containing a powder containing cocaine.  There were also two electronic scales.  Inside a cupboard, three further tablets of sildenafil were found, and inside a wardrobe, the cocaine was found inside a metal box which contained four plastic bags inside one plastic bag, and totally, the 16.5 grammes of cocaine were found there. There were what are described as stacks of plastic bags, a total of 308, and cash of $20,000.

4.  There were interviews conducted with the defendant.  In the initial interview, he said he had bought the tablets from a pharmacy and no prescription was required; and, secondly, that he had the habit of taking cocaine.

5.  A further video-recorded interview was conducted later, and the defendant places some reliance on that.  So the details have some importance.  He said that he had bought the seized tablets from a pharmacy.  No prescription was required.  He knew about the cannabis and cocaine seized from his home.  He had taken cannabis for some 20 years. He bought the cannabis from Central and from Chung King Mansions and spent $500 to purchase it.

6.  He had been taking cocaine for 10 years, took it twice per week.  At the weekends, he would take 5 to 7 grammes of cocaine.  He would purchase it for around $500 to a thousand dollars per gramme.  The $10 banknotes were used for the consumption of cocaine, and the support for that of course is the analysis of those banknotes.

7.  He packed the cocaine into different bags for consumption, and he would weigh cocaine by using electronic scale to prevent being cheated by the seller.  He had come to Hong Kong for work, and he had worked in a bank for three years but was unemployed at the time of his arrest.  He relied on savings and the financial support of his mother.  His mother had given him $20,000 per month.  He was the tenant of the room where he was staying, paid $7,000 per month and had been there for two years.

8.  The street value of the cocaine is valued at $24,914.  The street value of the cannabis is $225.

9.  The defendant admits that he possessed the cocaine for the purpose of unlawful trafficking.

10.  As far as the defendant’s antecedents are concerned, they are admitted.  He is now, I am told, 37 years old.  He possesses a French passport, has a master’s degree in engineering and came to Hong Kong in 2007 to work as a trader.  He was unemployed at the time of arrest.  There is other information he was setting up a company at the time of his arrest.

11.  He is described in the antecedents as being addicted to cannabis and cocaine for the last 10 years.  There is support for that in his conviction record.  He has two convictions: firstly, in 2009, possession of a dangerous drug where he was fined $2,000.  The latest conviction is in 2013, 17 September, the conviction for criminal intimidation where he was given a prison sentence of 3 months’ imprisonment suspended for 18 months.  So that was still in effect at the time that the defendant committed these offences, and so he is in fact in breach of that suspended sentence.  That will require to be dealt with in the course of sentencing today.

12.  In mitigation, I heard some matters concerning the defendant’s personal circumstances.  He maintains before the court as he maintained at the time of his arrest that he is addicted to the drug that he consumes, and he says that the drug found in his possession would be largely consumed by him, and that his trafficking in that drug would be with friends who he would sell, he said, on to at cost. 

13.  He has produced to support that some evidence from the Hospital Authority as to an admission where he is described as being addicted to cocaine.  The report is from the Queen Mary Hospital, accident and emergency department.  There is of course support for that proposition in both what the defendant told the police at the time of his arrest and also his previous conviction record for possession of dangerous drug.

14.  The defendant says he also receives support from friends, and there is a letter from a friend in December 2014 describing how she had given him $30,000 in December 2014.  Otherwise, the defendant is single but is engaged.  He has been tested for drugs more recently and found in that test not to have cocaine in his system.  He is optimistic as to his being able to rid himself of his addiction to drugs.

15.  It is accepted in mitigation and also by the defendant here that a prison sentence is an inevitable result of the charges to which he has pleaded guilty, but it is said in mitigation that I should take into account the fact that a substantial portion of the drugs would be for his own consumption. 

16.  I have been referred to the case of HKSAR v Wong Suet Hau & Another which provides an analysis of the approach that the court should take in determining which factors would determine whether allowance should be given in sentencing a defendant as to the fact that he would consume a substantial portion of the drugs himself.

17.  Now, I turn to the approach to sentencing today.  The approach to sentencing in respect of the 1st charge is simple.  This relates to possession of the four tablets, sildenafil, which were found in his possession, both on his person and in the premises where he worked.  Normally, the sentence for that would be a fine.  But in this case, having regard to the fact that the defendant will be serving a substantial term of imprisonment in respect of his plea of guilty to the 2nd charge, what I shall do is simply take a starting point of 3 days’ imprisonment and reduce that to 2 days’ imprisonment on the 1st charge.

18.  Now, I will deal with the 2nd charge.  The defendant has pleaded guilty to the offence of trafficking in 16.5 grammes of narcotic content of cocaine.  That puts him in the range of sentencing of between 10 to 50 grammes which would result in a sentence of between 5 to 8 years’ imprisonment as a starting point for sentence in this case. 

19.  After the determination of the starting point for sentence, I must look at the question of self-consumption in the light of the factors that I must consider as to whether that is a significant factor in sentencing the defendant in this case.  The factors I am required to look at are the quantity and value of the drugs (I have already elucidated that); the general circumstances of how the drugs were wrapped and how many packets were found (The cocaine in this case was found in four plastic bags); where the drugs were discovered (They were discovered in the residential address rented by the defendant); the presence of paraphernalia associated with the drugs (In this case, there were scales and plastic bags which might suggest that division of the drugs would take place.  There is also evidence of self-consumption of the drugs in the possession of the $10 notes.); whether the defendant was an addict or habitual user (I believe it is established in this case that the defendant is an addict certainly of cocaine and probably also of cannabis.  The explanation given by the defendant following the arrest, he has been consistent in his explanation of how and why the drugs were in his possession.); the general means and his ability to pay for his drugs otherwise found by trafficking in them (And, of course, it is somewhat mixed here.  The defendant has other sources of income but he accepts he would sell the drugs on.  He says here at cost, but that would provide him with the ability to pay for the purchase of the drugs in the first place.); and the defendant’s criminal record in relation to previous drug offences (We see here that there is a previous conviction for possession of dangerous drugs.)      

20.  Now, I do accept in this case that a portion of the drugs would have been for the defendant’s self-consumption, and it is clear that he has a substantial what I think is described as habit for consumption of these drugs, and no doubt some of the drugs in this case would have been used for that purpose.  I have to determine to what extent that will affect the starting point for sentence as to what deduction there can be from the original starting point for sentence.

21.  More recently, the approach has been that the deduction from a starting point for sentence should range, can range between 10 to 25 per cent of the original starting point for sentence, the court being left to take the appropriate figure based on the evidence before it.

22.  My resolution of the issue is as follows.  I will take in this case a starting point of 60 months’ imprisonment.  That is at the bottom end of the guideline for sentence but the defendant is a first offender for trafficking in a dangerous drug.  So I will take the starting point for sentence at 60 months’ imprisonment.  I will give a further 20 per cent deduction from that for the defendant’s self-consumption of the drug.  That is a total of 12 months.  So the starting point for sentence on the 2nd charge will be 48 months’ imprisonment.  The defendant is entitled to a further one-third deduction from that figure, leading to a sentence of 32 months’ imprisonment on the 2nd charge.

23.  On the 3rd charge, the defendant has pleaded guilty to possession of 3 grammes of cannabis resin.  Again a sentence in respect of this would normally be in the range of a fine.  Given the defendant’s position of being imprisoned, I will after deduction for his plea of guilty impose a sentence of 7 days’ imprisonment.

24.  I propose to make all the sentences on all charges, on these three charges to run concurrently in this case because the offences were discovered on the same day and all related to the possession of unlawful substances.  So the total sentence on the three charges that the defendant faces will be one of 32 months’ imprisonment.

25.  There is the question of the suspended sentence.  This is for an unlike offence and it is towards the end of the suspension period.  What I shall do is I shall bring the suspended sentence into effect but having regard to overall totality, I shall run it concurrently to the existing sentence.  So the overall sentence today will be one of 32 months’ imprisonment for all charges the defendant faces.