HKSAR v. Kwan Yan Kit and Another

DCCC 328/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 328 OF 2016

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Reasons for Sentence

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1.The 1^st defendant has pleaded guilty to two charges: possession of a dangerous drug and trafficking in a dangerous drug.

2.The facts of this case are straightforward.  At about 2.15 am on 16 January this year, police officers were on patrol in a police vehicle in the Sham Shui Po area.  They saw the 1st and the 2nd defendants in this case sat in a car in Tong Yam Street.  This defendant was in the driver’s seat and the 2nd defendant next to him.  The vehicle’s interior light was switched on.

3.Police officers observed this defendant looking down and packing or dealing with some small plastic bags.  The defendant looked up and saw the officers.  The officers saw him say something to the 2nd defendant, and at that moment both got out of the vehicle and ran in different directions.

4.Both defendants were caught by police chasing them.  This defendant was searched where he was caught, and in his trouser pocket a police officer found the cocaine of Charge 1.  There were two small resealable plastic bags containing a total of 0.37 grammes of a solid containing 0.33 grammes of cocaine.

5.Under caution, the defendant admitted possession for his own consumption.

6.In the vehicle the police found a total of 30 plastic bags containing 6.51 grammes of a solid containing 5.24 grammes of cocaine.  This is the cocaine of Charge 2.

7.Under caution, the defendant told the police that he had just purchased the cocaine for $2,000 that morning.  It was for self-consumption.

8.The 2nd defendant denied all knowledge of the dangerous drugs in the vehicle and ran because the 1st defendant told him to do so.  The vehicle belongs to a friend.  He had no involvement in these charges.  The estimated street value of the cocaine seized is $7,313.

9.As I have said, this defendant has pleaded guilty to both Charge 1 and 2.  The 2nd defendant was only charged with Charge 2, and the prosecution offered no evidence against him.

10.This defendant is 24 years old and a man with a clear record.  I have been told in mitigation that he is educated up to Form 6 level and been in employment since he left school.  At the time of his arrest he was working as a waiter in this area, earning $18,000 a month. He lives with his parents and his older sister.  He contributes $5,000 to the family each month.

11.I have had two letters submitted in mitigation, one from his parents and the other from his elder sister.  They tell me the defendant is a filial son and has never given them any trouble in the past.  Obviously they have been taken by surprise.  Despite this, they are still very supportive of the defendant.  I have been told in mitigation the defendant has learnt his lesson and will not reoffend, staying away from drugs in the future. Mr Davies has said all he can on behalf of the defendant.

12.There are guidelines to adhere to, and trafficking cocaine follows the same sentencing tariffs for trafficking heroin.

13.I have taken into account the authority of R v Lau Tak Ming [1990] 2 HKLR 370.  The Court of Appeal are of the view that where up to 10 grammes of cocaine is trafficked, a starting point of between 2 to 5 years’ imprisonment would be appropriate.  Mathematically speaking, 5 grammes of cocaine would attract a 3½ year starting point.

14.Defendant, please stand up.  I have taken into account those guidelines I have just referred to, the facts of this case, the seriousness of particularly Charge 2, and also taken into account mitigation I have heard.  Besides your background, I have been told that in 2012 you were very civic-minded and helped a victim of a rape get justice by reporting what you saw to the police and then provided a statement to the police.  I will also take that into account.

15.I accept mitigation that it was not a significant amount of dangerous drugs.  Your best mitigation is your plea of guilty today plus the fact that at 24 years old you still had a clear record. I do hope, as you have said, this will deter you from reoffending.  You will not be treated leniently on the next occasion if there is one.  Moreover, your family will be seriously disappointed.

16.After careful consideration of all of those factors I have just outlined, on Charge 1 I intend to take a starting point of 9 months’ imprisonment.  For Charge 2 I will take a starting point of 30 months’ imprisonment.

17.You have pleaded guilty.  You are entitled to a discount of one‑third.

18.After that discount is applied, for Charge 1, you are sentenced to 6 months’ imprisonment.  For Charge 2, you are sentenced to 20 months’ imprisonment.

19.I will order both to be served concurrently.

20.That is a total sentence of 20 months’ imprisonment.  Do you understand that?