HKSAR v. Wan Tin Chi

DCCC 122/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 122 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted on his own plea on one count of trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the dangerous drugs being 34.4 grammes of a solid containing 29.24 grammes of cocaine.

2.Facts admitted by the Defendant disclose that at about 0052 hours on 29 November, 2015, PC 9412, a uniformed police officer, and his party were in a police vehicle approaching No. 317 Nathan Road, Yau Ma Tei when PC 9412 saw the Defendant stepping off a taxi – the Defendant looked in the direction of the police vehicle and then proceeded quickly into the commercial building at No. 317 Nathan Road.  PC 9412 immediately followed the Defendant into the building and intercepted him - he noticed the Defendant was shaking – and he searched the Defendant. The dangerous drugs the subject matter of the charge were found in the left inner pocket of the green jacket the Defendant was wearing.   There was one transparent re-sealable plastic bag with the label ‘110’ containing 110 plastic bags of cocaine (E2), and a second transparent re-sealable plastic bag with the label ‘50’ containing 54 plastic bags of cocaine (E4).   Upon arrest and caution, the Defendant admitted that he possessed the dangerous drugs for self-consumption. In a subsequent video recorded interview under caution, the Defendant admitted that he was a drug addict, taking cocaine once a day, and he had started taking drugs since he was 16 years old, and he had been taking cocaine for about 13-14 years.  At the time of his arrest, the Defendant was also in possession of 2 I-phones, one of which had a sim card, an Octopus card, a Moneyback card, 2 door keys and cash of HK$546.50.  The estimated street value of the cocaine found from the Defendant was HK$36,980.00.00.

3.I have carefully considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the Background Report which is now before me. As Mr. Mughal for the Defendant rightly said, personal circumstances pale into insignificance for trafficking in dangerous drugs cases of this magnitude.

Previous convictions

4.The Defendant had 3 previous convictions, none of which are similar to the present one. The last was in 2008, when the Defendant would have been about 17 years old. He has been out of trouble since. I will disregard his previous convictions in determining sentence.

Mitigation

5.Mr. Mughal on behalf of the Defendant submitted that the Defendant was now aged 30 years and single.  He came to Hong Kong from Macau in 1992, when he would have been about 6 years old. He has received education up to Form 3. Prior to his arrest, he had been employed for the past 2 years in a dispensary in TST as a salesman, earning about $20,000 a month including commissions. His parents divorced over 20 years ago, and he has not seen his father since. His mother now lives in New Zealand.   Because of the breakdown of his family unit by his parents’ divorce, there was a lack of care for the Defendant, and he turned to an alternative culture, mixing with undesirable peers and seeking solace in dangerous drugs – his criminal offences as recorded on his record discloses that his 3 previous convictions were between 2001 and 2003, when he was between the ages of 15 and 17 years old. Dabbling in dangerous drugs, he became addicted, and I am told that prior to his arrest, he was consuming between 3 to 6 packets of cocaine, each packet being about 0.2 grammes.  Counsel submitted that some of the dangerous drugs in the charge were for his own consumption.  The position of Mr. Chandler for the Prosecution is that the Prosecution is not in the position to dispute the Defendant’s claim that some of the dangerous drugs would be for his own self-use.                  Mr. Mughal submitted a letter from the Correctional Services Department dated 22 June, 2016. The Defendant has been in custody since his arrest, and was admitted to the Lai Chi Kok Reception Centre on 1/12/15. A urine specimen was collected from him on 2/12/15 for an immunoassay test with the test result that the urine was positive for cocaine. Mr. Mughal submitted that whilst in custody, the Defendant has reflected on his wrongdoings and been brought to his senses – he wishes to start afresh after serving his sentence for the present offence.  His employer at the dispensary has described the Defendant as a hardworking and diligent worker.

6.His greatest mitigation is his plea of guilty, which reflects remorse on his part.

Sentence

7.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life.

8.In Attorney General v Rojas [1994] 1 HKC 342,  Silke VP observed that the harm of cocaine was closely linked to the harm of heroin and it was held that  the sentencing guideline for trafficking in heroin as set out in  R v Lau Tak-ming [1990] 2 HKLR 370, was applicable to cocaine. It is not disputed that between 10 to 50 grammes of cocaine, the sentencing tariff is 5 to 8 years’ imprisonment.

9.The quantity of cocaine involved is 29.24 grammes.  Given the narcotic quantity and applying the tariff, I would adopt a starting point of 72 months.

Self-consumption

10.The Defendant submits that there should be a deduction from the starting point for the Defendant’s self-consumption of the drug.  The Court of Appeal in HKSAR v. Wong Suet Hau & Anor {2002} 1 HKLRD 69 at 79A-H said there were 8 factors to be considered in respect of determining the portion of the dangerous drugs intended for a defendant’s own use. The usual discount given ranges from 10% to 25% (see HKSAR v. Chow Chun Sang [2012] 2 HKLRD 1116; HKSAR v Cheuk Kin Man [2010]5 HKLRD 558; HKSAR v Law Num Chun {2014} 5 HKLRD 500; HKSAR v Tsang Chung Keung [2015] HKLRD 450).

11.Here, the Defendant has never been convicted of any trafficking offences in the past.  Mr. Mughal says the Defendant has been addicted to cocaine for years. He has a regular job and income. His immediate response to the caution administered to him upon arrest was that he had the cocaine for self-use.  In all the circumstances, I am prepared to grant him a  discount in sentence in the  region of 15% on the ground of partial consumption, this bringing the starting point down from  72 months to 61.2 months, which I will round off to 60 months.  The Defendant is entitled to a one-third discount from this figure for his plea.  This gives a figure of 40 months imprisonment or 3 years and 4 months imprisonment.  The Defendant is sentenced to 3 years and 4 months’ imprisonment.