HKSAR v. TSAI CHENG EN

DCCC 992/2017

[2018] HKDC 895

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 992 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 10.60 grammes of a solid containing 9.96 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 11:10 p.m. on 1 August last year the defendant was intercepted by the police when he entered Room 1928, on the 19/Floor of the Harbour Plaza 8 Degrees Hotel in Kowloon City.  The police found between the defendant’s trousers and underwear a transparent re-sealable plastic bag containing the cocaine. The police also found on the defendant $540 cash and a mobile phone. 

3.  Inside the room the police also found numerous transparent re-sealable plastic bags; an electronic scale; a mobile phone and $523.30 cash. 

Mitigation

4.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Hui both in court and in his written submission together with the defendant’s mitigation letter and a letter from his girlfriend.  

5.  I take into account that the defendant has taken up the responsibility of looking after his girlfriend’s mother and her young daughter aged one.  I also take into account that the defendant has a clear record. 

Starting point

6.  The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3].   Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment.  I am satisfied the proper starting point after trial for 9.96 grammes of cocaine is 5 years’ imprisonment. 

Own use

7.  Mr Hui tells the court that the defendant has been a drug addict since 2015 and takes 1.5 to 2 grammes of cocaine per day.  Mr Hui says that 6 grammes were for the defendant’s own consumption and the rest were for sale to friends. 

8.  In support of this claim Mr Hui relies on the fact that an inhaling device was found in the room and one female was also in the room and arrested.  The prosecution do not accept a significant proportion of the drugs were for own consumption but are prepared to accept that a small quantity may have been for own consumption. 

9.  For the reasons given in court I do not accept that up to six grammes may have been for the defendant’s own consumption.  Having taken further instructions Mr Hui informs the court that the defendant does not wish to give evidence in support of the claim that up to six grammes were for his own consumption.

10.  The prosecution accepting a small but not significant proportion of the cocaine may have been for own consumption and the fact that an inhaling device was found in the room, I am prepared to accept a small but not significant proportion of the cocaine may have been for own consumption.

11.  In deciding how much weight should be attached to the fact some of the cocaine may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5] and HKSAR v Tam Ling Yuen cited by Mr Hui[6].

12.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7].   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. 

13.  As stated I accept only a small quantity, not a significant proportion, was for own consumption.  Mr Hui asks that I give the defendant some discount for this small quantity. 

14.  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 the starting point should be reduced by 3 months to one of 4 years and 9 months’ imprisonment, which is equivalent to a discount of 5%. 

15.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 2 months’ imprisonment.