HKSAR v. SIU KA HO

DCCC338/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 338 OF 2009

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Reasons for Sentence

1.  The defendant is convicted upon his guilty plea of one charge of trafficking in a dangerous drug.

2.  In sentencing, I take into consideration the whole circumstances of the case including its nature and facts, in particular, the nature and quantity of the dangerous drug involved, personal background of the defendant and mitigation put forward on his behalf.

3.  The facts of the case are simple.  The defendant was stopped when he was passing through the nothing to declare channel in customs arrival hall of Lok Ma Chau Control Point.  Upon search a resealable plastic bag containing 11.9 grammes of a solid containing 7.72 grammes of cocaine was found inside the defendant’s right sock. 

4.  Under caution, the defendant said the “coke” was for his own consumption.

5.  It is provided in section 2 of the Dangerous Drugs Ordinance that trafficking in relation to a dangerous drug includes importing into Hong Kong and trafficking in a dangerous drug shall be construed accordingly.  It is also provided in the same section that import means to bring or cause to be brought into Hong Kong or any other country, as the case may be, by land, air or water.

6.  It therefore follows from the facts which the defendant admitted that he undoubtedly had trafficked in the dangerous drug as set out in the charge. 

7.  The defendant is 22 years of age.  He is not a first offender.  He has been convicted before on four occasions.  The first took place on 17 October 2002 when he was 16 years of age.  He was convicted for possession of dangerous drug and sentenced to receive treatment in DATC.  He has also been convicted for the offences of theft and claiming to be a member of a Triad society.  For this he was also sentenced to received treatment in DATC. 

8.  The last time he went to DATC was in the year 2003, thus indicating he was still drug dependent at that time.  The last conviction was in 2007 for the offence of AOABH.  I was told that the defendant committed the offence against the ex-boyfriend of his wife who kept harassing her.  The sentence of 7 days’ imprisonment reflects that it was probably not a serious case. 

9.  It has been held in the case R v Chang Chen Liu-sa [1995] 1 HKCLR 69 that in sentencing a case of trafficking in cocaine the tariff set out in the case of R v Lau Tak Ming [1990] 2 HKLR 370 was appropriate and applicable.  The Court of Appeal said in the case of R v Lau Tak Ming that for a quantity of up to 10 grammes of narcotics the tariff intended for imposition of a trial is 2 to 5 years’ of imprisonment. 

10.  The quantity involved in the present case is towards the upper end of the quantity in the band.  In the case of R v Lee Chiu Pang [1995] 2 HKC 523, the Court of Appeal said that, “Clearly those who will take drugs across borders must be dealt with more severely.” 

11.  In the present case, the defendant asserted that he was possessing the whole quantity of the dangerous drug for his own consumption even though what he did amounted to trafficking as a matter of law. 

12.  Learned defence counsel indicated that it would be the line to take by the defence.  Learned counsel for the prosecution informed the court that the prosecution was not going to take any issue in relation to this assertion and no Newton hearing would therefore be required.

13.  I will therefore sentence the defendant for this offence based on the fact that he was trafficking the whole of the dangerous drug in his possession for his own consumption. 

14.  In this connection I have had regard to the case of
R v Chan Mun Lung [1992] 2 HKCLR 127.  The facts in that case are very similar to the present.  The Court of Appeal said, “The question of whether or not the importation was for self-consumption was highly relevant to sentence.  If the drugs were only for self-consumption this was a strong mitigating factor.”  The Court of Appeal adopted that view recently in the case of HKSAR v Chan Man Bor, CACC234/2007. 

15.  In the light of these precedents, I will adopt a starting point lower than what would have been appropriate if the special feature in this case does not exist.

16.  In consideration the latent risk and the international element should not be ignored. 

17.  I note what was said by the Court of Appeal in the case of R v Chiu Hung Wong [1994] 1 HKCLR 184 and HKSAR v Wong Suet Hau, CACC366 of 2000, about what the court should bear in mind even in a case of simple possession of dangerous drug. 

18.  In mitigation the defence counsel told me that the defendant is the sole breadwinner of the family.  He has received lower secondary education.  He is a delivery worker earning about $10,000 per month.  His parents do not enjoy good health.  He is married.  His son is only 1½ years old.  Letters from the defendant, his wife, his family and his employer were produced. 

19.  I am told that the defendant went to China to buy the dangerous drug since he believed what his friend told him that the price there was about 30 per cent cheaper than in Hong Kong.  I am also told that the defendant is now very remorseful and determined to turn over a new leaf and get rid of his vice habit.

20.  From the criminal record and what I have been told, I am satisfied that the defendant is drug dependent.  I however agree with the view of learned defence counsel that calling of any report including a DATC report might not be of great use in the present case.  I am of the view that an imprisonment term is appropriate and in the light of the term I have in mind, I am sure that with the facilities and mechanism in the Correctional Services Department the defendant can receive proper treatment when he is serving his sentence.

21.  In all the circumstances I am of the view that a starting point of 27 months is appropriate.  The defendant is entitled to a one-third discount for his guilty plea.  Having considered the whole circumstances, including mitigation, I am of the view that this is the extent of discount the defendant is entitled to in this case.

22.  Based on the matters aforesaid, I sentence the defendant to 18 months imprisonment.