HKSAR v. Yuen Chun Kit and Another

DCCC 420/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 420 OF 2016

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REASONS FOR SENTENCE

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1.The Defendants are jointly charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 12.26 grammes of a solid containing 10.48 grammes of cocaine and one count of possession of a dangerous drug, contrary to Section 8(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, namely 5.69 grammes of a powder containing 3.00 grammes of ketamine. They have each admitted the charges.

Facts

2.Facts admitted by each Defendant disclose that at about 1.25 a.m. on 20 August, 2015, officers conducted an anti-narcotics operation at Room 1711, Heng Tsui House, Fu Heng Estate, Tai Po. They found the Defendants in the kitchen of the premises.  D1’s relatives were in a bedroom of the premises. The dangerous drugs the subject matter of the charges were found in the kitchen.  There were also empty re-sealable plastic bags, a pair of forceps, an electronic scale, a foldable knife, a membership card, a “Yakult” bottle with a straw attached, a white straw with red stripes, a lighter, a notebook, HK$4,600 cash and 4 mobile phones. The Defendants were arrested and cautioned at the scene. D1 said that the ‘k chai’ and ‘coke’ belonged to him and D2, and the others were not involved, whilst D2 said the ‘coke’ belonged to him and D1. In subsequent video-recorded interviews under caution, they each admitted that they were selling cocaine together.  D2 was responsible for cutting the cocaine into smaller pieces using the foldable knife while D1 would use the membership card and forceps to place the cut pieces into the re-sealable plastic bags and weigh each packet using the electronic scale.   The HK$4,600 seized at the scene were the proceeds of their trafficking in cocaine. They split their earnings equally between themselves.  2 of the 4 mobile phones seized were used for drug trafficking. D1 and D2 were themselves users of cocaine and ketamine. The ketamine seized was for their own consumption and they had jointly purchased it for HK$400.

3.The total value of the seized narcotics was HK$13,276.              

Previous Convictions

4.D1’s criminal record dates back to 2011. He has 3 previous convictions in 2 court appearances, including a conviction for trafficking in dangerous drugs in 2011, a charge similar to charge 1 herein, when he was sentenced to 56 months’ imprisonment.

5.D2’s criminal record dates back to 2009. He has 2 previous convictions in 2 court appearances. His first conviction was in 2009 for possession of dangerous drugs, a charge similar to charge 2 herein, when he was fined $2,000 and his second conviction in 2011 for trafficking in dangerous drugs, a charge similar to charge 1 herein, when he was sentenced to 26 months’ imprisonment.                                                                                   

Mitigation

D1

6.D1 is now aged 28 years.  No issue was taken on the contents of the Antecedent Statement in relation to D1.  According to the Antecedent Statement,   he was born in Hong Kong and educated up to Secondary 3 level. He was unemployed at the time of his arrest and he was previously a transportation worker.  He was single and lived with his mother at the offence location.  He was a drug addict, using ketamine and cocaine. Ms. Chan for D1 informed the Court that although it was recorded on his Antecedent Statement that he was unemployed at the time of his arrest, he was in fact employed on a casual basis by the Shing Kei Chicken Hotpot at the Kwun Tong Tsui Ping Estate Market and submitted a letter from his employer, wherein he was described as having ‘good   performance, enthusiastic about work, he was kind and polite to the client, pleasant cooperation and got along well with colleagues’.   D1 had worked there from June to August 2015. Prior to that, he had worked as a transportation worker for almost 2 years from 2013, when he had been released from prison until June, 2015, when he left the job as he found the work very hard – it involved long hours.  This was a full time job.  Ms. Chan also submitted letters from D1’s mother and friend, both seeking leniency for D1.

D2

7.D2 is now aged 29 years. No issue was taken on the contents of the Antecedent Statement in relation to D2 save in respect of paragraph (h)  - Mr. Ting for D2 informed the Court that D2 was in fact married but his wife lived in China while he lived in Hong Kong at the address on the Antecedent Statement with his parents and elder sister – he and his wife had no children. I note that both D1 and D2 live in the same building. According to the Antecedent Statement,   D2 was born in Hong Kong and educated up to Secondary 3 level.  He was unemployed at the time of his arrest but used to work in a hair salon.  He, too, was a drug addict, consuming cocaine and ketamine. Mr. Ting informed the Court that D2 used to work at various jobs,   his last job being that of a car washer, and it lasted for a few months. I was also informed that D2’s father was in Court to show his support of D2.  Mr. Ting submitted letters from D2’s employer, his father and his wife, all seeking leniency for D2.

8.I have before me the Background Reports in respect of each Defendant.  Counsel for each Defendant inform me that they have explained the contents to the Defendants and they each take no issue on the contents. They both seek leniency on behalf of their clients.  I have considered the contents therein.  I have also considered all that has been submitted on behalf of each defendant as well as the contents of the various letters in mitigation and authorities submitted.

Sentencing Considerations

9.The Defendants now each admit possession of the drugs the subject matter of Charge 1 for trafficking.

10.Ms. Chan, for D1, submitted that the tariff set down in the case of R. v. Lau Tak-ming [1990] HKLR 370 for heroin applied to cocaine, as set down by the Court of Appeal in A.G. v. Pedro N. Rojas, A G Review No. 15 of 1995,   and for a quantity of 10 to 50 grammes of cocaine, the tariff is 5 to 8 years’ imprisonment. As the quantity of narcotics here was 10.48 grammes in Charge 1, it was in the lower range and the appropriate starting point was 5 years’ imprisonment.  She also submitted that some of these drugs in Charge 1 would be for self-use, and warranted a further discount, referring to HKSAR v. Chow Chun-sang, CACC 135/2011, and she suggested an appropriate discount to be 5 to 10 %.  She also asked for the sentences on charges 1 and 2 to be concurrent.

11.Mr. Ting, for D2, submitted a letter dated 14 July, 2016 from the Correctional Services Department, confirming that D2 was admitted into the Lai Chi Kok Reception Centre for the present offence on 21/8/2015. The urine specimen collected from him on 22/8/2015 for the immunoassay test was positive for cocaine.  He submitted that D2 was a drug dependant and some of the seized dangerous drugs were for his own consumption. He submitted that D2 offended for financial reasons – he had to support his own family as well as his wife in China.  He also had credit card debt. Mr. Ting submitted that D2 offended out of foolishness.

12.Mr. Lui for the Prosecution has very fairly said that part of the seized dangerous drugs were for the self-use of the Defendants. He accepted that both Defendants were drug addicts. He submitted 2 authorities,  HKSAR v. Yeung Kam Chun, CACC 427/2004 and HKSAR v. Castano Arango Jose Reinel, CACC 174/2014,    wherein the Court of Appeal held concurrent sentences to be appropriate where defendants are charged with offences of trafficking and possession of dangerous drugs, where the offences are connected closely in time and factually and submitted that the Prosecution accepted that concurrent sentences were appropriate.

13.The Prosecution also submitted the authority of HKSAR v. Chan Pui Chi, [1999] 2 HKLRD 830, to support the submission that trafficking in dangerous drugs was an extremely serious offence from which the public had to be protected – although both Defendants were relatively young, they each had previous convictions for trafficking in dangerous drugs and the Court should consider imposing deterrent sentences.

14.Both Ms. Chan and Mr. Ting submitted on behalf of the Defendants that the present case could be distinguished from that of Chan Pui Chi, supra, as the defendant therein had an ‘appalling’ record with 22 previous convictions including drugs related offences and had 2 previous for trafficking. The Court there held that where the defendant was a persistent offender in the same or similar offences, the result was that the starting point which would have been adopted for a man of good character would sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other.  In other words, the court is passing a deterrent sentence on the persistent offender from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. The court held that the graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected. Although I do view the offence of trafficking in dangerous drugs to be a very grave offence, I accept that both D1and D2 herein cannot be described as ‘persistent’ offenders, although they each have one previous conviction for trafficking in dangerous drugs.

15.As Counsel for the Defendants have rightly said, the appropriate sentence for trafficking in 10 to 50 grammes of cocaine is from 5 to 8 years’ imprisonment.  The sentence follows the quantity of drugs.  That would put the quantity in the Defendants’ possession for trafficking at the material time at the lower end of that spectrum, being 10.48 grammes of cocaine, and would warrant a starting point of 5 years’ (i.e. 60 months) imprisonment.  In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121 the Court of Appeal held at p. 1126:

“ in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case.

16.I have taken into account that each Defendant is a drug abuser and that some of those drugs would have been for self-consumption.  I have borne in mind the quantity and packaging of the dangerous drugs in question. They each admitted that they would pack the cocaine into the plastic bags and these would be sold. I have borne in mind too that both the Defendants were working part-time at the time of the offences. They are both drug addicts. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure.

17.Looking at those features of the case, I shall discount the starting point by 6 months for each Defendant – a discount of 10% - to reflect that some of the dangerous drugs were for the Defendants’ own consumption. I have decided that the appropriate starting point for Charge 1 for each Defendant is therefore one of 4 years and 6 months’ (i.e. 54 months) imprisonment.

18.Each Defendant has pleaded guilty to Count 1 and is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me. Each Defendant is therefore sentenced to 3 years’ (36 months) imprisonment on Count 1.

19.As to the second charge of possession of a dangerous drug, having regard to the quantity of ketamine concerned and in view of each Defendant’s drug dependency, the appropriate starting point is one of 12 months’ imprisonment. Each Defendant is likewise entitled to a discount of one-third to reflect his plea to the charge, and each Defendant is therefore sentenced to 8 months’ imprisonment on charge 2.

20.In considering whether the sentences should be served concurrently or consecutively, I have borne in mind the totality principle of sentence, as well as the overall criminality involved.  In all the circumstances of this case, a concurrent sentence would adequately reflect the Defendants’ overall culpability.  I therefore order that the sentences on Charges 1 and 2 be served concurrently by both D1 and D2.