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DCCC 760/2018
[2019] HKDC 953
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 760 OF 2018
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| Present: |
Mr Jason Lau, PP, of the Department of Justice, for HKSAR
Ms Vivian Wong instructed by Cheung & Liu, 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
1. The defendant pleads guilty to one charge of trafficking in 8.79 grammes of a solid containing 5.92 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. Full particulars of the offence are set out in the facts admitted by the defendant today. In summary at around 7:58 p.m. on 24 May last year the police intercepted the defendant outside G/F, Yeung Shue House, Lei Muk Shue Estate in Kwai Chung.
3. Upon search the police found in the back pocket of the defendant’s pants a plastic bag inside which was forty-two plastic bags containing the cocaine.
4. The defendant was also found in possession of $1,200 and two mobile phones.
5. The defendant was arrested and under caution claimed the drugs were for self-consumption.
6. On a search of the defendant’s home no drug apparatus was found.
7. The estimated street value of the cocaine was $11,207.25.
Mitigation
8. In passing sentence, I have carefully considered the oral and written submissions of Ms Wong together with the content of the defendant’s mitigation letter in which he says he now realises the harmful effect of taking drugs.
9. I take into account that at the time of his arrest the defendant had a clear record. The defendant has however since his arrest been convicted of possession of drugs. On 17 May this year the defendant was sentenced to DATC and is presently still in the DATC[2].
Starting point
10. The courts have equated for sentencing purposes cocaine with heroin[3]. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4]. Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment.
11. On a purely arithmetical approach a starting point of just over 3 years and 9 months is appropriate for trafficking in 5.92 grammes of cocaine. I adopt a starting point of 3 years and 9 months’ imprisonment.
Own use
12. The defendant told the police he had been taking cocaine for three years, two to three times per week with one to five grammes per consumption[5].
13. The defendant also had the habit of collecting the left overs in a small bag for reuse. This is the bag in brown colour[6].
14. The defendant claims that ten packets were for his own consumption and that he would sell the rest to support his drug habit[7].
15. In support Ms Wong relies on the positive result of a urine test taken three days after arrest on admission to Lai Chi Kok and that the defendant was subsequently sentenced to DATC for possession of cocaine[8].
16. The prosecution adopts a neutral stance.
17. Taking into account the positive test of the urine sample and that the defendant is presently serving DATC, I am prepared to accept that ten bags and the brown colour bag may have been for the defendant’s own consumption.
18. In deciding how much weight should be attached to the fact ten bags and the brown colour bag may have been for the defendant’s own consumption, I have considered the decision in HKSAR v Wong Suet Hau[9], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[10] and HKSAR v Tam Ling Yuen[11] cited by Ms Wong[12].
19. In Wong Suet Hau the Court of Appeal said that in most cases the difference, if any, will be slight[13]. From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption.
20. Ms Wong estimates that ten bags together with the brown colour bag contained 1.55 grammes of cocaine, 26.2% of the total quantity of cocaine[14].
21. Ms Wong submits in court that a 13% discount is appropriate and refers the court to HKSAR v Choi Chun Wo where the Court of Appeal held that 28.5% of the total quantity of drugs for self-consumption was a significant proportion[15]. I note that the drug in that case was ice and not cocaine for which different guidelines apply.
22. If about 1.55 grammes of the cocaine was for own consumption this would mean the defendant was trafficking in 4.37 grammes of cocaine, which would attract a starting point of just under 3 years and 4 months’ imprisonment.
23. A discount of 13% from the basic starting point would result in a starting point of just over 3 years and 3 months’ imprisonment, just less than for trafficking in 4.37 grammes of cocaine.
24. I am satisfied to reduce the starting point below or to the same as that which would be appropriate for the amount the defendant admits is for trafficking would be wrong in principle.
25. I find that 1.55 grammes of cocaine is not a significant proportion.
26. Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied a reduced starting point of 3 years and 6 months’ imprisonment is appropriate, which is just under a 7% discount.
27. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 4 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134.
[2] KCCC 1011/2019.
[3] See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
[4] [1990] 2 HKLR 370.
[5] See §(g) of the antecedent statement and §9 c) of the written mitigation skeleton.
[6] See §9 f) of the written mitigation skeleton.
[7] See §9 g) of the written mitigation skeleton.
[8] See §9 a) & b) of the written mitigation skeleton.
[9] [2002] 1 HKLRD 69.
[10] [2012] 2 HKLRD 1121.
[11] [2016] 2 HKLRD 572.
[12] See §12 of the written mitigation skeleton.
[13] At §33. Also see HKSAR v Wong Hon Chiu CACC 137/2015.
[14] See §13 of the written mitigation skeleton.
[15] [2018] 5 HKLRD 717.
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