HKSAR v. CHAN KA WAH

DCCC 750/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 750 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.

2.  He has agreed the Summary of Facts which show that on the early morning of 17 June this year, the defendant was intercepted in Nathan Road, Yau Ma Tei, for investigation.

3.  The left pocket of his trousers was searched and a transparent resealable bag containing 40 transparent resealable plastic bags containing the drugs and other transparent resealable bags which contained a further 19 resealable plastic bags, containing drugs were found.  The defendant said the drugs were cocaine and that he bought them for $6,000 was for his own consumption.  The drugs were examined and found to contain a total of 12.62 grammes of a solid containing 11.77 grammes of cocaine, the street value of those drugs being $12,796.48.

4.  The prosecution, from those facts and from the defendant’s plea of guilty, asks the court to draw the infernece of trafficking, that the defendant was in possession of the drugs for the purpose of trafficking.  Clearly, that is the appropriate inference to be drawn and the defendant was convicted on the basis of those facts.

5.  As far as the defendant’s antecedents are concerned, he is aged 43 years.  He was born in Hong Kong and was educated up to secondary 4.  At the time of his arrest, he was unemployed and in receipt of CSSA.

6.  The defendant has a record of previous convictions.  There are 20 convictions in all, on 13 separate occasions.  The defendant has three previous convictions for possession of dangerous drug and a conviction in 2007 for trafficking in a dangerous drug where the sentence was eventually one of 5½ years’ imprisonment.

7.  The defendant has been to a Drug Addiction Treatment Centre in 2003.  In mitigation, it is said that the defendant himself is a consumer and addict of the drug.  The defendant’s previous record of convictions would lend support to that proposition.  The defendant has a father who is aged. In his antecedents, it says he takes up to 1 gramme of cocaine every day.

8.  As far as sentencing is concerned, the starting point for sentence on occasion such as this will be determined having regard to the quantity of drug and the point on the appropriate guideline sentence.

9.  It is common ground that the sentencing guideline for cocaine, can be taken from the sentencing guideline for heroin, which is the case of Lau Tak Ming.  This case falls within the category of 10 to 50 grammes, the operative.quantity being the narcotic content in this case being 11.77 grammes of cocaine.  The 10 to 50 grammes range presupposes sentence in the region of 5 to 8 years’ imprisonment or more correctly, a starting point for sentence of between 5 to 8 years’ imprisonment.

10.  I consider that the figure here is at the lower end of the guidelines so the starting point at this point will be one of 5 years’ imprisonment, which is 60 months’ imprisonment.

11.  There are two other factors of sentencing in respect of this matter.  One is an aggravating factor, which is the defendant’s previous conviction for trafficking, and the other is the mitigating factor, which is the defendant’s consumption of the drug.  As far as the aggravating factor is concerned, the defendant has a conviction for a serious drug offence in 2007.  Clearly, that sentence was not sufficient to deter him from committing further offences of trafficking and this should, of course be reflected in the sentence.  I consider, in this case, this means an extra 6 months’ imprisonment should be added to the guideline sentence, which will give a starting point now for sentence of 66 months’ imprisonment.

12.  The defendant is a drug addict and a consumer of drugs.  His antecedents says he would consume about a gramme of cocaine every day.  In this case, the defendant has prayed in aid that a part of the drugs would be used for his own consumption.  That is a factor that can be taken into consideration and can reduce the starting point for sentence.

13.  More recent cases have said, depending on the amount the defendant would consume, the deduction from the original starting point can range between 10 to 25 per cent of that figure.  As a matter of fairness to this defendant, I will take that into account.  He is a long-time consumer of drug and appears to be a fairly heavy consumer.

14.  He has convictions in respect of drug consumption dating back to 1996.  He was in a Drug Addiction Treatment Centre in 2003 and received a sentence for possession of dangerous drugs of 6 months’ imprisonment in 2012, so his criminal record provides evidence of long-term drug history and consumption.

15.  I should take a figure of 15 per cent by way of deduction to represent the defendant’s consumption of drug.  That is a figure of 11 months from the starting point of 66 months’ imprisonment.  This gives now a starting point for consideration of deduction for plea of guilty at 54 months’ imprisonment.

16.  From that 54 months’ imprisonment, the defendant is entitled to a one-third discount.  By my calculation, that amounts to 18 months’ imprisonment which will give a final figure for sentence in this case of one of 36 months’ imprisonment or 3 years’ imprisonment and that will be the sentence I will impose, one of 3 years’ imprisonment.

Court adjourns - 3.11 pm

Court resumes - 3.23 pm

Defendant present. Appearances as before.

17.  An addendum to the original order will be as follows.  It has been pointed out to me by the prosecution, quite correctly, quite rightly, that my calculations are in error, particularly my calculation of a 15 per cent discount.

18.  I consider the final figure for sentence to be appropriate one so what I shall do is I indicate that a deduction from the 66 months in the region of 15 per cent is what I consider is appropriate.  That would give a figure that would not enable me to properly calculate a one-third discount from that because it would not be divisible by 3.  So what I shall do is indicated that the appropriate deduction from the 66 months should be one of 12 months, which is a figure in the region of 15 per cent.  That leaves a final starting point for sentencing of 54 months’ imprisonment, for which there is a one-third deduction of 18 months.  That leads again to the final sentence of 36 months’ imprisonment, or 3 years’ imprisonment.