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DCCC 865/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 865 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Peter LEE, counsel on fiat, for HKSAR. |
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Mr. David CHU instructed by M/s Yip & Co.,
assigned by the Director of Legal Aid, for the
defendant.
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| Offence : |
Trafficking in a dangerous drug（販運危險藥物） |
REASONS FOR SENTENCE
The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.
Summary of Facts
2. About 3:50 a.m. on 15 August 2015, police officers saw the defendant walking towards Sze Yu House from Kam Lam House at Choi Wan (I) Estate, Wong Tai Sin. They stopped him for enquiry. Upon search, the following items were found in the defendant's left front trouser pocket :-
(i) a resealable plastic bag containing 29 resealable plastic bags which contained a total of 4.88 grammes of a solid containing 2.81 grammes of cocaine; and
(ii) a resealable plastic bag containing 20 resealable plastic bags which contained a total of 3.34 grammes of a solid containing 1.97 grammes of cocaine.
3. The defendant now admits that he possessed the cocaine for the purpose of trafficking.
Mitigation & Sentence
4. The defendant is 20[1] and has a clear record. Defence counsel Mr. CHU informed me that prior to the present offence, the defendant was a salesman in a bullion company for a short period time. At present, he is a construction worker earning $16,000 per month. The defendant resides with his parents and 4 siblings at a public housing unit.
5. In mitigation, Mr. CHU submitted that the defendant was only a courier. He mixed with undesirable peers and was lured into committing the offence. Mr. CHU also submitted that the defendant is a cocaine user. His instructions are that the defendant intended to consume half of the cocaine found. A letter written by the defendant was placed before me; its contents are duly noted.
6. Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects (from education, crime detection to recovery of proceeds of drug trafficking). A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh young offenders, so that there is a deterrent effect.
7. Mr. CHU has invited me to consider other sentencing options (such as Drug Addiction Treatment Centre or Training Centre) before sending the defendant to prison. I accept that as a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders. On the other hand, in the past few years, I have seen a steady (if not increasing) number of young persons in my court being charged with "drug trafficking". Many of them were just like the defendant – persons in their late teens or early 20s with clear record being used by others as "couriers".
8. When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit our youngsters. Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age. Undoubtedly, most of them are "used" by bad persons (or so they claim). That is the reason why we need to make young people think twice before they agree to be "used".
9. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370). For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment. In the present case, the defendant trafficked in 4.78 grammes of cocaine, the appropriate starting point is 3.5 years.
10. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. Apart from his bare assertion, there is no evidence to suggest that the defendant is a drug user[3]. I note that under caution at the scene, the defendant said "Ah Sir, the 'coke' is for my self-consumption". In his video recorded interview, the defendant exercised his right and refused to answer most of the questions. According to the antecedent statement, the defendant resides at Choi Wan Estate. It is perhaps a possibility that he was carrying the cocaine home. All in all, I have no basis to doubt the truth in the defendant's assertion. I, however, reject his claim that half of the cocaine found was for his own consumption. I am prepared to reduce the sentence to 3 years[4] to reflect the discount for self-consumption.
11. Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.
[1] Although the defendant is under 21, by virtue of section 109A(1A) of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.
[2] See HKSAR v CHOW Chun Sang [2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin Man CACC 294/2009 (English translation).
[3] Mr. CHU submitted that the defendant's initial response upon arrest was claiming self-consumption. Since the Summary of Facts is silent on this matter, I asked to see the relevant notebook entry and the transcript of the video recorded interview. Mr. CHU agreed.
[4] In CHOW Chun Sang, Yeung VP held "We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant." (paragraph 19, p.1126)
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