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DCCC 562/2019
[2019] HKDC 1693
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 562 OF 2019
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| Present: |
Mr Lam Shun Chiu, Counsel on fiat, for HKSAR |
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Mr Karl Keung instructed by Messrs. Yu Sun Yau Mak & Lawyers assigned by the Director of Legal Aid for the defendant. |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant, 25, pleaded guilty before me to one count of drug trafficking; the drugs are 23.9g of a solid containing 21.2g of cocaine.
2. Close to mid-night on 27 February 2019, a team of police officers stopped the defendant near the junction of Nathan Road and Man Ming Lane, Yau Ma Tei, for questioning, and found a tin box containing the drugs in this case hidden underneath the sleeve of his jacket. The drugs were put in a resealable plastic bag.
3. The defendant was then arrested for drug trafficking, and said under caution “the cocaine is for my own consumption”.
4. Also found on him were $6,730 in cash, $26 Renminbi, and two mobile phones and four SIM cards.
5. The defendant was later taken back to his residence in Tsuen Wan for a house search and nothing suspicious was found.
6. The defendant has no prior conviction. In mitigation, the court heard that the defendant was born in the Mainland and came to live in Hong Kong at the age of 9. He did not have much education – only junior high school in the Mainland.
7. His parents divorced, and he currently lives with a relative. He has done a number of jobs such as salesperson, waiter etc., and his last job was a coolie earning about $30,000 a month.
8. Counsel for the defendant, Mr. Karl Keung, said that the defendant first came to know about drugs in September 2018 through bad peers and has since become a drug addict. His urine test conducted after his arrest shows positive for cocaine.
9. In his letter to the court, the defendant expressed great remorse for what he had done and put it all down to his association with undesirable peers. While in custody, he decided on reflection to lead a drug-free life and to become a useful person to the society.
10. A joint letter from his sister and mother spoke very positive about the defendant and asked the court to be as lenient as possible.
11. Mr. Keung submitted that about half of the drugs seized, i.e. 10 grams, were for the defendant’s personal use and would ask this court to give a further discount on the ground of part-consumption.
12. I have indicated to Mr. Keung that based on the evidence before the court, I am not prepared to accept it unless there is further evidence for the court to consider. Having taken instructions from the defendant, Mr. Keung told the court that there would not be additional evidence.
13. Without further evidence, the only evidence which the defendant would rely on to support his claim of part-consumption is the positive urine test result, but such could not show anything more than the fact that the defendant is a cocaine user.
14. It is true to say when a drug user was to engage in drug trafficking activities, it might happen he would want to have some of the drugs kept for his own use; however, the contrary is equally true that he would simply be trafficking the whole of the drugs.
15. So, whether or not a portion of the drugs is for personal use has to be looked at individually; every case depends on its own facts. The claim of part consumption would best be tested perhaps by way of cross-examination.
16. His first reaction at the scene that he told the officers that the drugs were for his own consumption is clearly referring to the whole of the drugs, but now by pleading guilty to trafficking, he was in effect saying part of the drugs (not the whole) were indeed for trafficking. Such change of attitude calls for an explanation.
17. And how he was going to separate the drugs into personal use and those for trafficking purpose in a single bag of drugs? Why would he carry or mix those for personal use with that which he would give to others? Questions like these require an explanation.
18. It is counterintuitive, moreover, that a drug trafficker, when engaging in drug trafficking activities like the defendant in the instant case, would bring along that portion of drugs he would use by himself, because he must be aware of the risk that when he ever runs into any law enforcement officers, he would likely be charged with trafficking in the whole lot. In so doing, he has everything to lose but nothing to gain. Again, this requires an explanation.
19. In the absence of any plausible explanations from the defence, it will be hard for the court to accept the defendant’s claim for part-consumptions.
20. There are sentencing guidelines for this type of offence - for the amount (21.2g) the defendant admitted trafficking, the applicable tariff is-for trafficking between 10g to 50g, 5 to 8 years.
21. For the amount of 21.2g, I take 69 months as the starting point. As far as his mitigation is concerned, apart from his timely guilty plea there is not anything of substance. There being no other reason for any further reduction, and having deducted a third for his plea, the resulting sentence is one of 46 months’ imprisonment.
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