HKSAR v. Kwan Wai Man

DCCC 16/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 16 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of trafficking in a dangerous drug and that involves a quantity of 21.4 grammes of cocaine.

2.He has admitted the facts and I have convicted him.

3.The facts show that the offence arose out of a stop-and-search operation that occurred in Portland Street.  The defendant was searched and in the right rear pocket of his jeans a Marlboro cigarette packet was found, and that Marlboro cigarette packet contained a transparent resealable bag containing the cocaine.  The defendant said, “I was caught red-handed by you.”

4.The defendant admits that he trafficked in the dangerous drug specified in the charge. 

5.The drugs themselves are valued at $25,051.

6.And the defendant had only $297 on him when he was arrested.

7.His antecedents show that he is 33 years old. He says that his health is good but he has been a drug addict since he was 17 years old.  He has a number of previous convictions dating back to 1999.  The ones relevant for consideration for today are in 2010 when he was convicted for possession of a dangerous drug, placed on probation, and then later in the year breached the probation order and was sent to a drug addiction treatment centre.

8.The sentence is to be dealt with as follows. The defendant here is dealing with 21.4 grammes of narcotic cocaine. The starting point for sentence is determined by reference to the guideline sentence.  And in the case of this drug, cocaine is tied to the guideline sentence of trafficking in heroin contained in the case of Lau Tak Ming where 10 to 50 grammes of the drug warrants a sentence of between 5 to 8 years’ imprisonment.  The relative point on that guideline of 3 years is determined by the quantity of the drug.  Thus, in this case the starting point for sentence should be in the region of 6 years’ imprisonment or 72 months.

9.Now, the defendant submits that there should be a deduction from the starting point for his self-consumption of the drug.  This is a legitimate reason to discount from the starting point for sentence.   It has recently been reaffirmed by the Court of Appeal where the defendant would consume a significant portion of the drug, in such case a deduction between 10 to 25 per cent is appropriate.

10.In submission it has been said that the defendant could consume up to half of the drug which is a significant proportion.  And the defendant points to his criminal record which shows his addiction history and entry into drug addiction treatment centre.  He also refers to the circumstances of his arrest, where the drugs were packaged in a single resealable plastic bag that they were bought.  Well, he was carrying them in the early hours of the morning back to his residence and that no items for trafficking or drugs were found on the home search.

11.I find that on that basis the defendant can establish on the basis of the evidence before me that he would consume a significant portion of the drug himself and he is entitled to a discount on that basis.  Of course any determination of a percentage must involve an element of speculation and must of itself be an approximate figure. 

12.I would assess the figure appropriate for discount in the region of 15 per cent which I will capitalise as a 12 months’ imprisonment to be deducted from the 72 months’ starting point.  That means the starting point for sentence is now 60 months’ imprisonment.  The defendant is entitled to one-third discount from this figure.  This gives a figure of 40 months’ imprisonment or 3 years and 4 months’ imprisonment, and that will be the sentence I will impose.