HKSAR v. CHAN CHUN KIT

DCCC 354/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2009

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Reasons for Sentence

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The charge

1.  The defendant pleads guilty to the charge of trafficking in a dangerous drug, namely 26.45 grammes of a mixture containing 14.17 grammes of cocaine in total. 

The facts

2.  In the afternoon of 10 February 2009, police officers laid ambush on 13/F, Hung Hom Mansion, No. 46-56, Wuhu Street, Hung Hom.  When the Defendant and 2 girls appeared in the corridor of 13/F, he was intercepted.  He was holding a bundle of keys.  He said he was living in Room B there.  Police officers used the keys to enter the premises and found on a table next to the bed:

(1)One plastic bag containing one transparent resealable plastic bag containing substances (Exh. 1) later analysed to be 14.53 grammes of a mixture containing 8.17 grammes of cocaine, and 18 resealable transparent plastic bags of substances (Exh. 2) later analysed to be 11.92 grammes of a mixture containing 6 grammes of cocaine;

(2)One spoon (Exh. 3) with traces of substances later analysed to be 0.02 grammes of a mixture containing cocaine;

(3)One electronic scale (Exh. 4) with traces of substances later analysed to be containing cocaine;

(4)One lighter (Exh. 5); and

(5)One resealable transparent plastic bag (Exh. 6) containing 84 resealable transparent plastic bags (Exh. 6A).

3. After arrest and caution, the Defendant said that some of the drugs were for his own consumption while some of them were for selling to others.  He had bought the cocaine at HK$13,000 in the Jockey Club Off-course Betting Centre in Shanghai Street on 25 December 2008.  He would sell some to others to recoup the cost of his own consumption.  He had not sold to others yet.  He used to consume 1 to 2 grammes of cocaine daily.  He used the spoon and the electronic scale to deal with the cocaine.  He lived there.  The 2 girls were his friends on a visit and they had no knowledge of the dangerous drugs.

Mitigating put forward

4. The Defendant was 18 years old at the time of the offence.  He is still 18 years old today.  He has a bond of good behaviour related to violence.  I treat him as having a clear record.  After F. 4, he quit schooling and took up various unskilled jobs.  He lives with his aged grandmother, who is now 80 years old and suffers hypertension and diabetes.  His parents divorced when he was 7 years old.  His father works in Macau and only comes to visit him intermittently.  His mother is presently in Thailand to visit her father, who suffers some disease.   

5. Owing to the influence of bad peers, he began to take dangerous drugs at the age of 15.  He did not earn enough to feed his drug spending of $200 per day.  So he committed the present offence.   

The sentencing principles

Sentencing young defendants for drug trafficking

6. Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

The offence of trafficking in dangerous drugs is under section 4 of the Dangerous Drugs Ordinance, Cap. 134, an excepted offence by Schedule 3.  The Court therefore should consider a term of imprisonment on equal footing as other options such as the Drug Addiction Treatment Centre or Training Centre, etc.    

Sentencing guidelines for cocaine trafficking

7. In Attorney General v Rojas [1994] 1 HKC 342, Silke VP equated the adverse impact of cocaine with heroin.  The sentencing guidelines in R v Lau Tak-ming [1990] 2 HKLR 370 would be directly applicable as follows:

（1）Below 10 grammes of heroin, 2 to 5 years’ imprisonment;

（2）10 to 50 grammes, 5 to 8 years；

（3）50 to 200 grammes, 8 to 12 years；

（4）400 to 600 grammes, 15 to 20 years；

（5）over 600 grammes, 20 years upwards.

The sentence I pass

8. The charge involved 14.17 grammes of cocaine.  It falls within the range of 5 to 8 years’ imprisonment according to Lau Tak-ming (supra).  The Defendant was both consumer and seller.  There was an electronic scale and 102 (i.e., 18 + 84) transparent plastic bags to facilitate his selling.  There was a serious possibility that depending on the terms he might sell most of the cocaine.  He is a drug addict himself.  It means that the Drug Addiction Treatment Centre will not admit him.  In any event, I think the present case is far too serious to warrant other options than a term of imprisonment.  On that basis, I take a starting point of 5 years.  I give a one-third discount for the plea of guilty and his clear record.  There are no other mitigating factors.  The sentence is 3 years and 4 months.