HKSAR v. CHU WAI LEUNG VINCENT

DCCC 1192/2022

[2024] HKDC 61

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1192 OF 2022

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REASONS FOR SENTENCE

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Charge

1.  D1 was charged jointly with D2 for one count of trafficking in a dangerous drug. 

2.  Both defendants pleaded not guilty on 16 March 2023.

3.  However, Defence Counsel wrote to the prosecution indicating that D1 would plead guilty to the charge of trafficking and at the same time asked prosecution not to proceed against D2. 

4.  Prosecution acceded to their request.  The case was then brought up to the court on 10 October 2023 for mention on that issue.  On that occasion, D1 formally indicated to the court that he would plead guilty to the charge of trafficking. 

Facts

5.  On 12 September 2022 at around 3.50 am, some patrolling police officers found D1 acting suspiciously in the street.  D1 was holding a plastic bag then. 

6.  When D1 was intercepted by the police officers, he threw the plastic bag into a private car nearby through the driver’s seat window.  The bag landed inside the car. 

7.  The plastic bag was later found to contain 40 smaller bags containing a total of 9.9 grammes of a solid containing 9.86 grammes of methamphetamine hydrochloride.  The defendant was arrested. 

8.  The estimated street value of the drugs was around HK$6,200. 

9.  Now in court, D1 admits he unlawfully trafficked in that quantity of dangerous drugs, namely, 9.9 grammes of a solid containing 9.86 grammes of ‘Ice’. 

Criminal Record

10.  D1 has 14 previous convictions between 1995 and 2018.  Most of them were related to petty theft and possession of a dangerous drug.  He has no trafficking record.  His last conviction was in December 2018 for possession of a dangerous drug. 

Mitigation

11.  Defence Counsel says that D1 is now aged 53.  He is single and unemployed.  He lives by himself. 

12.  Counsel agrees that the quantity of ‘Ice’ in question is near the top end of the tariff for trafficking up to 10 grammes of ‘Ice’, which would attract a starting point of about 7 years’ imprisonment.  Counsel says D1 was only a courier of the ‘Ice’.  There were no aggravating factors in the case. 

13.  Counsel says the defendant was himself an addict.  He told the police that he bought the drug for his own consumption.  In his mitigation letter, he also mentioned that he had the drugs for his consumption. But counsel now confirms for D1 that he would not raise any assertion of own use. 

14.  Counsel says D1 pleaded guilty early and he should be entitled to a one-third discount. 

Sentence

15.  Defence Counsel is correct to say there were no aggravating factors in this case.  However, I do not agree with him that D1 should be entitled to a full one-third discount. 

16.  D1 pleaded not guilty to the charge on 16 March 2023.  The case was then set down for trial 10 months later.  The two-day trial was to start on 8 January 2024.  D1 only informed the prosecution of his intention to plead guilty to trafficking on 8 May 2023. That was more than seven weeks after the trial date had been set down. 

17.  Although D1 was originally charged jointly with D2 for trafficking in the ‘Ice’ and D2 was finally let go by the prosecution,  D1 could still plead guilty as early as 16 March 2023 on the basis that he trafficked in the ‘Ice’ on his own. Yet he only admitted simple possession on that occasion but not trafficking.  He only changed his plea to trafficking in the drugs in question more than seven weeks later.  In the circumstances, D1 is only entitled to a 24 per cent discount. 

18.  D1 has no trafficking conviction record but he has one record of simple possession in 1997 and two in 2018.  Having considered all the circumstances of the case, I would adopt 83 months’ imprisonment as the starting point.  D1 is entitled to only 24 per cent discount for his plea.  The resultant sentence is one of 63 months’ imprisonment.