HKSAR v. HO KA CHUN

DCCC 192/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.192 OF 2012

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Reasons for Sentence

1. The defendant pleaded guilty to one charge of trafficking in a dangerous drugs, contrary to s.4(1) and (3) of the dangerous drugs Ordinance, Cap.134.

Facts

2. The defendant was intercepted by Police officers in Wanchai on 2^nd December 2011 at around 11:20am and 40 transparent re-sealable plastic bags of dangerous drugs were found inside his right sock upon search. Although the defendant claimed then that the drugs were for his own consumption, the fact that he is now pleading guilty to the charge of trafficking, and the fact that there were 40 plastic bags support his plea for trafficking.

Previous convictions

3. The defendant has 5 previous convictions, 3 relating to dangerous drugs, none to trafficking.

Mitigation

4. The defendant was born in Hong Kong in 1991, aged 21. Studied up to F.2 in Hong Kong, working as cashier at a private club at time of arrest. Last released from DATC on 18^th June 2010. The defendant is generally healthy but I was told that he is a drug addict. He is single and lives with his parents in Kwai Chung.

5. The defendant’s father is in court. The defendant’s parents were divorced when the defendant was 2 years old. After the mother left, there was a step mother who came to look after the defendant. The father was quite strict with the defendant. The defendant finished form 2 and then left school. At the time of the offence he was earning about $9,000 per month as a cashier in a private club. Because of the people he came into contact with, the defendant was exposed to dangerous drugs.

6. The defendant would like to turn a new leaf. He said he is young and would like to make himself useful. He would like to go to the Drug Addiction Treatment Centre to kick his habit. The defence would like to ask for DATC report to be prepared.

Sentencing guidelines

7. I refused to call for such a report. The reason being that there are strict sentencing guidelines for trafficking cases. The sentencing tariff for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in R v Lau Tak Ming and Others [1990] 2 HKLR 370.

“9. The current sentencing guidelines for heroin traffickers in R v Lau Tak-ming and Ors (above) have also been adopted for offences of trafficking in cocaine (see: Attorney General v Pedro Nel Rojas [1994] 1 HKC 342) and all references to heroin trafficking in this judgment apply equally to cocaine traffickers. The suggested tariffs in Lau Tak-ming and Ors (at 387) are as follows:

“(a) up to 10 grammes of narcotic : 2 to 5 years’ imprisonment;”

Sentence

8. The defendant is 21 years old, he does not fall into the category of extreme youth. Trafficking in dangerous drugs is an excepted offence, as such, imprisonment need not be the last resort even given his age.

9. The defendant is not of clear record, but this is his first trafficking conviction. He told me through his legal representative that he is a drug addict and wished to be sent to the DATC for treatment. It would have been his 2^nd visit if this request is granted.

10. Having heard from Mr. Li in mitigation, I find that there is nothing to allow me to depart from the sentencing guidelines and as such I will not, and I cannot, call for the report.

11. I will follow the guidelines, adopt the starting point of 51 months’ imprisonment, granting the defendant the full one third discount in recognition of his plea of guilty and sentence him to 34 months’ imprisonment.