HKSAR v. Chan Ming Chiu

DCCC 756/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 756 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of “Trafficking in a dangerous drug”. The dangerous drug involved is cocaine.

Summary of facts

2.In the evening of 13 June 2016 outside Ground Floor, Lok Man House, the defendant was found acting furtively and intercepted by police.  He was then found to have possessed in his trousers right front pocket altogether 24 resealable plastic bags of solid containing 12.64 grammes of cocaine.

3.Under caution, the defendant said that it was his first time helping others to deliver “coke” which meant cocaine.

4.Subsequently at a search on the defendant’s residence, there were found an electric balance and 40 empty resealable plastic bags.

5.The street value of the cocaine seized was estimated to be around HK$17,610.

6.The defendant now admits that he possessed the said cocaine for the purpose of unlawful trafficking.

Mitigation

7.The defendant is aged 21 and is of clear record.  He was educated up to Form 4 and worked as a junior hairdresser from November 2015 to March 2016.  He earned about HK$10,000 per month and has been living with his divorced mother and younger brother in a public housing estate.

8.The defendant was badly influenced by peers and started to take cocaine since August 2015.  He was subsequently addicted to it and spent around HK$4,000 per month on the consumption of dangerous drugs.  Out of financial need on his addiction, he stupidly took the risk of delivering cocaine in the present case.

Sentence

9.A clear message must be conveyed to the general public that “drug trafficking” is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.  Sadly, many of the drug traffickers are drug addicts themselves but that will not alleviate Hong Kong courts’ repugnance of the enormous harm bought to the society by dangerous drugs.

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years’ imprisonment.

11.The defendant trafficked in 12.64 grammes of cocaine, I consider the appropriate starting point is 5 years, i.e. 60 months’ imprisonment.   Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles set out in the authorities.[1]  In Chow Chun Sang, Yeung VP held:-

“We are of the view that 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.” (paragraph 19, p 1126)

12.There is sufficient evidence to show that the defendant was a drug user at the time of arrest.  I am prepared to give 15% of reduction for that and reduce the sentence to 51 months to reflect the discount for self-consumption.

13.A one-third discount is given for the guilty plea, reducing the sentence to 34 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence the defendant to 34 months’ imprisonment.