HKSAR v. CHOI YU MAN

HCCC 11/2018

[2018] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 11 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

Inside the car which the defendant was about to enter, after having opened its doors with a remote car key, two plastic bags of cocaine was found inside the storage compartment of the door of the driver’s seat. Under caution, the defendant said he bought the coke for his own consumption.

The defendant is 22 years of age. He has received education up to Form 4 and had worked as a vehicle maintenance worker, a hairstylist, and a waiter; at the time of arrest he was working as a driver. The defendant is not a first time offender. In 2010, he was convicted for assault occasioning actual bodily harm for which he was put on probation. In 2012 he was again put on probation for possession of dangerous drug.

In mitigation, the counsel for the defence, Mr Lo, asked the court to accept that part of the dangerous drug seized was for the defendant’s own consumption. He said the defendant was going to the car to take the drug home. There were two packs of drug and it was the intention of the defendant to keep about half of one of the packs for his own consumption. The defendant had consumed drug for about five years and he consumed about 0.5 to 0.8 gramme of cocaine each day. Urine tests conducted when the defendant was put under custody revealed a positive result for cocaine. The defendant was earning about $20,000 a month, which was sufficient to provide for the asserted quantity of drug for his own consumption.

Mr Lo said the defendant is now full of remorse and is determined to turn over a new leaf, in particular to get rid of his drug dependence. He was prepared to equip himself by engaging in some courses, including English course when he is serving the imprisonment term. He come from a decent family and family members are in court to support the defendant.

Mr Lo also informed the court that the defendant has been sharing his experience with inmates, and alerted them of the great harm dangerous drug would bring to individuals and the society. The defence submitted a letter written by the defendant in which he expressed his remorse.

The dangerous drug which the defendant trafficked in was 47.4 grammes of a solid containing 45.8 grammes of cocaine. The guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In that case, the Court of Appeal heard that if the narcotic content trafficked in was between 10 to 50 grammes, a sentence of 5 to 8 years should be considered. In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff. In my judgment, a starting point of 7 years and 3 months would have been appropriate.

In connection with the assertion of self-consumption, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen CACC 159/2015. All the dangerous drugs seized was found inside the defendant’s car parked near where he lived. When the dangerous drug was found, the first reaction of the defendant was that it was for his own consumption. The criminal conviction record and urine test of the defendant support his assertion that he was drug dependent at the time of arrest. On the other hand, I note that when the officer was preparing the antecedent statement, he was told by the defendant that he was not drug dependent.

In all the circumstances, I am prepared to consider on the basis that a proportion of the dangerous drug in the defendant’s possession was for his own consumption as he asserted. At the same time, I also take into account that the offence of possession of dangerous drug itself carries a custodial sentence. As regards latent risk, my assessment is that it was quite substantial. Having considered the whole circumstances, taking into account the self-consumption and related factors, I adopt an ultimate starting point of 6 years and 9 months.

The defendant pleaded guilty before a magistrate; he is entitled to a one-third discount for this reason. Having regards to mitigation submission of Mr Lo, in my judgment one-third is the extent of discount the defendant is entitled to.

For the reasons I have mentioned, I sentence you to an imprisonment term of 4½ years.