HKSAR v. CHAN WAI SHING

DCCC 525/2023

[2024] HKDC 1097

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to one offence of trafficking in a dangerous drug, contrary to Section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, the act of trafficking taking place on 30 January 2023 and the drug in question being cocaine. The narcotic quantity of that drug is 11.5 grammes.

2.  The facts agreed by the defendant which are relevant to sentence is the defendant was seen at No 54, Nathan Road, Tsim Sha Tsui and was intercepted by police for inspection. A search was conducted and from the left front pocket of the defendant’s trousers the cocaine was found, contained in one white plastic bag which contained one further resealable plastic bag. The defendant was immediately arrested, cautioned and under caution he said the drugs were for his own consumption. He had cash of $1,437 and a mobile phone on him.

3.  He later conducted a video-recorded interview. He lives in Tin Shui Wai. He works at the time as a part-time cleaner in a hotel nearby with a monthly salary of some $11,000. He said he was a habitual user of cocaine, using 0.3 grammes each time, and would spend up to $6,000 per month on the drug. He bought the cocaine for cash nearby in Chungking Mansions after work and then he was intercepted. The money in his possession was his earnings. The estimated value of the cocaine is $14,501.50 and the defendant admits that he possessed that cocaine for the purpose of unlawful trafficking.

4.  His antecedents show him to be at the time that the record was taken aged 44, educated to secondary level in Hong Kong, working as a cleaner. His criminal record shows some nine previous appearances in court. Of relevance is conviction for possession of a dangerous drug dating back to 2002 with further convictions in 2003, 2004 and 2008 and the defendant has been to Drug Addiction Treatment Centre on at least two occasions in the past. His criminal record would appear to show that he has been a user of a drug for a considerable period of time.

5.  Now as far as the mitigation advanced, the defendant lives in a public housing unit with a girlfriend. They have been living in that unit for some 20 years. They have a total of six children that they look after, twin daughters, a 16 year old daughter, 14 year old son, 8 year old son and a 6 year old daughter, all in full-time education. The mitigation also says there are difficulties in relation to the children in respect to health matters. Apart from the twins and the youngest daughter, all the other children suffer from medical issues. In fact the third daughter suffers from scoliosis which results in deformity of the spine and the two sons suffer from autism. Clearly this requires extra attention by both parents.

6.  The defendant will also advance in his mitigation that he as a drug addict would have had part of the drugs for his own consumption. That is supported by his four previous drug offences for possession starting from 2002, a urine test report from the Correctional Services Department of 19 September 2023 and he says he had an addiction to drugs since the age of 19 with a daily intake of between 0.6 to 0.8 grammes. On that basis the quantity bought would last him a month to a month and a half. As I have said, it was in the Covid period when it was easier to buy large quantities to last for a longer period.

7.  Now so far as the approach to sentence is concerned, the sentencing in cases of trafficking in a dangerous drug is largely determined by the guideline sentences. The sentence for the trafficking in cocaine is the same as that for number three, number four, heroin, which can be found in the case of R v Lau Tak Ming [1990] 2 HKLR 370 and that tariff was adopted in the case of Attorney General v Pedro Nel Rojas which is [1994] 2 HKLR 69. The defendant was trafficking in a total of around 11.5 grammes of the drug. The relevant tariffs are as follows: Up to 10 grammes of between 2 to 5 years and 10 to 50 grammes is 5 to 8 years, so the defendant is on a mathematical basis just over the first step in the tariff. On a mathematical basis, I am told, the sentence would be around 61 months’ imprisonment. Of course mathematical calculations are not necessarily the only way to arrive at a starting point for sentence. One must look at the overall picture, the defendant’s culpability, at any mitigation that is put forward and a fair and just starting point must be adopted. That can be seen in the case of HKSAR v Herry Yusuph.

8.  I consider the appropriate starting point would be one of 60 months’ imprisonment, that is 5 years’ imprisonment. There is no further aggravating factors to increase the sentence. I now look at the mitigating factors for sentence. There are two advanced, one is the defendant’s plea of guilty and the other is the defendant’s consumption of the drug himself. The consumption of all of part of the drug is a mitigating factor and that can be seen from the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and also the HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69. A summary of those two cases is that a further discount for sentence can be given if a large part of the drugs found on this person were for his own use. The phrase usually wants you to have is a “significant portion”. A further discount of between 10 to 25 per cent can be warranted for this mitigating factor.

9.  I have already outlined the mitigation that supports that, the defendant’s longstanding drug addiction as illustrated in his conviction record. The fact that the defendant on arrest and incarceration was found on his immunoassay tests to have traces of amphetamine, benzodiazepine, cannabinoids, cocaine and opiates in his system which is suggestive of a person who is a drug addict. The defendant’s description of why he had the drugs was contained at a very early stage in the process, his daily intake ranging between 0.3, it would seem, and 0.8 grammes of the drug is reasonable. I consider the defendant has established on the evidence that I have seen a basis for a reduction of sentence from the starting of between 10 to 25%.

10.  The figure I will take is one of 15% which will be a 9 month reduction from the starting point of 60 months’ imprisonment. That is a figure of 51 months’ imprisonment.

11.  Defendant has indicated his plea of guilty from an early stage and accepted his responsibility for these drugs from an early stage. He is entitled to a further one-third deduction from that which is a further 17 month reduction which leads to a final sentence of 34 months’ imprisonment.