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DCCC 1092/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1092 OF 2016
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Wilson CHOI, PP, of the Department of
Justice, for HKSAR. |
|
Mrs. Cecilia WONG of M/s Kevin Ng & Co.,
assigned by the Director of Legal Aid, for the
defendant. |
| Offence : |
(1) & (2) Trafficking in dangerous drugs（販運危險藥物） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 2 charges of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and ketamine.
Summary of Facts
2. About 12:50 a.m. on 5 July 2016, PC 15443 (PW1) stopped the defendant for enquiry at the rear lane of Hung Yu Mansion, Nos.155-169 Castle Peak Road, Cheung Sha Wan.
3. Upon search, PW1 found in the defendant's right front trouser pocket: (i) 40 plastic bags which contained a total of 8.36 grammes of a solid containing 7.70 grammes of cocaine; and (ii) 20 plastic bags which contained a total of 9.74 grammes of a powder containing 4.05 grammes of ketamine. This is Charge 1.
4. The defendant was brought back to Room A, Flat 22B, 3rd Floor, Block B of Hung Yu Mansion ("the Flat"). With the keys seized from the defendant, PW1 and his colleague entered the Flat and executed a search warrant. They found on a table: (i) a yellow paper bag containing 95 plastic bags which contained a total of 19.70 grammes of a solid containing 18.20 grammes of cocaine and 7 plastic bags which contained a total of 194 grammes of a powder containing 78.50 grammes of ketamine; (ii) 353 empty plastic bags; (iii) an electronic scale; and (iv) a pair of scissors. This is Charge 2.
5. Under caution, the defendant claimed that the dangerous drugs seized from his trouser pocket and the Flat were for his own consumption.
6. In his video-recorded interview, the defendant claimed that he was subletting the Flat from a friend by paying rent to the friend's parents. The defendant was on his way to buy food when he was arrested. He claimed that all the drugs seized were for his own consumption.
Mitigation & Sentence
7. The defendant is 17 and has 2 conviction records, which involved 2 "simple possession" offences. Defence solicitor Mrs. WONG informed me that the defendant was born in the mainland. He came to Hong Kong in 2006. He left school after completing F.2. He is currently serving a Detention Centre Order (KTCC 1563/2016). He committed the present offences whilst on bail in KTCC 1563/2016.
8. In mitigation, Mrs. WONG submitted that the defendant committed the present offences because he wanted to earn money to fund the surgery of his maternal grandmother, who was injured in a traffic accident. Mrs. WONG further submitted that the defendant acted a courier delivering drugs from Cheung Sha Wan to Tsim Sha Tsui upon receiving instructions. He could earn $2,000 per delivery. Mrs. WONG also submitted that the defendant had been consuming cocaine about 2 to 3 months prior to his arrest. He would take 2 to 3 pills (about 0.23 gramme per pill) per day. Prosecuting counsel Mr. CHOI expressed no strong views on this issue.
9. 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.
10. 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. 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 were just like the defendant – persons in their late teens or early 20s being used by others as "couriers".
11. 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".
12. 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) and ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment; and for 10 to 50 grammes, 5 to 8 years' imprisonment. For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment; and for 50 to 300 grammes, 6 to 9 years.
13. In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003, HKSAR v CHENG Yat-ming CACC 455/2006 and HKSAR v CHAN Yuk-leong CACC 318/2013.
Charge 1
14. The defendant trafficked in a cocktail of drugs consisting of 7.70 grammes of cocaine and 4.05 grammes of ketamine. For 7.70 grammes of cocaine, the appropriate starting point is 51 months. For 4.05 grammes of ketamine, the appropriate starting point is 2.5 years. The "combined approach" would arrive at a realistic and fair sentence.
15. In terms of either potency or quantity, 7.70 grammes of cocaine should form the basis of the starting point. Hence, I adopt a starting point of 51 months' imprisonment and adjust it upward by 6 months for the small quantity of ketamine, arriving at 57 months.
16. The defendant was carrying the drugs with him on the street. For this charge, I would not grant him any discount for self-consumption.
17. A one-third discount is given for the guilty plea, reducing the sentence to 38 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 38 months' imprisonment for this charge.
Charge 2
18. The defendant trafficked in a cocktail of drugs consisting of 18.20 grammes of cocaine and 78.50 grammes of ketamine. For 18.20 grammes of cocaine, the appropriate starting point is 5.5 years. For 78.50 grammes of ketamine, the appropriate starting point is 75 months. The "combined approach" would arrive at a realistic and fair sentence.
19. In terms of quantity[1], 78.50 grammes of ketamine should form the basis of the starting point. Hence, I adopt a starting point of 75 months' imprisonment and adjust it upward by 15 months for the cocaine portion, arriving at 90 months.
20. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. Apart from his bare assertion under caution and submissions from Mrs. WONG, the defendant has 2 conviction records of "simple possession" offences. I accept that he could have been a cocaine user; and the quantity of daily consumption submitted by Mrs. WONG seems reasonable. On the other hand, I cannot overlook the fact that packaging paraphernalia were found at the Flat, which is cogent evidence of trafficking. I am prepared to reduce the sentence to 84 months[3] as a nominal discount for self-consumption.
21. A one-third discount is given for the guilty plea, reducing the sentence to 56 months. I sentence the defendant to 56 months' imprisonment for this charge.
Overall Sentence
22. Bearing in mind the total quantities and nature of the drugs involved in both charges, I consider a global starting point of 93 months to be appropriate. Given the nominal discount of 6 months for self-consumption, the sentence is reduced to 87 months. With the guilty pleas, the overall sentence is further reduced to 58 months. Hence, I order 2 months in Charge 1 to run consecutive to Charge 2; thereby arriving at a total prison term of 58 months.
[1] In HKSAR v KO Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the "combined approach" is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. (para.3(c) at p.859)
In HKSAR v WAN Lau Mei CACC 389/2013, McWalters J (as he then was) held at para.36 "Under the combined approach it is necessary for the judge to identify the drug sentencing tariff that he will employ. This is done by identifying the drug which makes up the bulk of the narcotic seized or where the drugs are of significantly differing potency the judge may use the tariff of the more potent drug if it makes up a significant proportion of the total quantity of drugs being trafficked."
[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] 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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