HKSAR v. CHIN CHUN YU

DCCC 1052/2020

[2021] HKDC 1453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1052 OF 2020

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to 2 counts of trafficking in dangerous drugs. 

Facts

Charge 1

2.  At around 7:51 p.m. on 10^th August 2020, CO 1114 (“PW1”)  intercepted the Defendant at the rear entrance, King Man House, Ho Man Tin Estate, Ho Man Tin, Kowloon, Hong Kong.  PW1 then searched the Defendant on the pavement outside the said rear entrance and found, inside the Defendant’s left shoe, a transparent resealable plastic bag, containing 30 small transparent resealable plastic bags, containing suspected dangerous drugs (“El”).

3.  The Defendant was then arrested and cautioned.  Under caution, the Defendant stated that El was cocaine and it was used for his self-consumption. A car key was also found in the left front pocket of the Defendant’s shorts. Upon enquiry, the Defendant stated that:-

(a)  the car key belonged to him;

(b)  the registration mark of his car was WS 4787;

(c)  his car was parked on the road outside; and

(d)  he lived in Po Tat Estate, Sau Mau Ping.

4.  The Defendant also had cash of HK$590, cash of RMB1,552 and two mobile phones on him.

5.  Government Chemist confirmed that El contained a total of 5.05 grammes of a solid containing 4.42 grammes of cocaine.

Charge 2

6.  Later, at around 8:05 p.m., PWI used the said car key to open the door of a private car bearing registration mark WS 4787 (the “Car”)  parked on the road outside the rear entrance, King Man House, Ho Man Tin Estate, Kowloon, Hong Kong.  PW1 then disassembled the window control panel on the offside front door of the Car and found therein:-

(a)  a transparent resealable plastic bag containing:-

(i)  9 small transparent resealable plastic bags, containing suspected dangerous drugs (“E2”);

(ii)  1 transparent resealable plastic bag, containing a small transparent resealable plastic bag, containing suspected dangerous drugs (“E3”);

(b)  a transparent resealable plastic bag, containing 2 small transparent resealable plastic bags, containing suspected dangerous drugs (“E4”); and

(c)  a transparent resealable plastic bag, containing 2 small transparent resealable plastic bags, containing suspected dangerous drugs (“E5”).

7.  The Defendant was arrested and cautioned again by PW1.  Under caution, the Defendant stated that E2-E5 were cocaine, and they were used for his self-consumption.  Cash of HK$10,720.10 was also found in the storage compartment at the center console of the Car.

8.  Government Chemist subsequently confirmed that E2, E4-E5 contained a total of 1.75 grammes of a solid containing 0.79 gramme of cocaine and E3 contained 0.65 gramme powder containing 0.56 gramme of ketamine.

9.  Transport Department confirmed that the Defendant was the registered owner of the Car on 10^th August 2020.

General position

10.  The total estimated street value of the dangerous drugs seized was HK$12,500.

11.  At the material times, the Defendant possessed E1-E5 for the purpose of unlawful trafficking.

Mitigation

12.  The Defendant is 27 years of age, of F. 1 education level.  Before detention, he lived with his parents and elder brother.  They all work full time.  He worked as a construction worker.  The relationship is harmonious but not deep.  He lacks communication, supervision and discipline.  His grandmother had been the one to raise him as a child.  He has then become the one to take care of her as his charge.  She has been in a nursing home since his detention.  She was tested and found to become totally blind as stated in the medical record dated 5 March 2021.  This happened after the present offences.   

13.  The defence raise the proposition that part of the drugs seized was for his own consumption.  This is contrary to the Summary of Facts which covered the entire lot of drugs and which he agreed to as the basis of his plea of guilty.  This proposition is simply untenable. 

14.  According to HKSAR v Lau Tak Ming [1990] 2 HKLR 370, the sentencing guideline for trafficking in cocaine of up to 10 grammes indicates 2 – 5 years as the starting point. 

15.  The defence asks me to consider the quantity of ketamine too minute for an increase in the sentence.  I agree to do so.   

Sentencing the Defendant

16.  Where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time, where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places, the court shall add the total of the active ingredient of the drugs together to arrive at a notional starting point for each charge and impose wholly concurrent sentences (HKSAR v Lam Chi Wa CACC 94/2008).  

17.  The total quantity of cocaine herein is 5.21 grammes.  I take a starting point of 3 years 6 months for each of the charges.  I give a one-third discount for the plea of guilty.  I also reduce the sentence by 2 months based on compassionate ground in view of his grandmother’s condition.  The sentence is 2 years 2 months.  The sentences shall be wholly concurrent.