HKSAR v. Au Pan Hin

DCCC 969/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 969 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of Trafficking in a dangerous drug.

Facts

2.In summary, at about 10:00 pm on 25 July 2016, the defendant took a taxi in Shatin and requested the driver to take him to Shun Ning Road in Cheung Sha Wan.  At about 10:16 pm on the same night, the taxi was stopped by the police at a road block outside No 47 Shun Ning Road.  As the defendant appeared to be nervous and was pressing his right front trouser pocket with his right hand, the police requested him to step out of the taxi for a search.  When the defendant opened the door with his left hand, he at the same time used his right hand to take a cigarette box out from his right front trouser pocket.  He then dropped the cigarette box onto the ground as he was stepping out of the taxi.  The cigarette box was found to contain 4 transparent re-sealable plastic bags containing suspected dangerous drugs.  Three of those 4 plastic bags each contained a small piece of paper with numbers “12”, “8” and “4” written on them respectively.  The defendant was arrested and under caution stated that he had just purchased those four packets of cocaine at HK$7,500 for own consumption.  

3.CCTV footage of a shop nearby captured the incident which showed the defendant stepping out of the taxi and an item falling from his body when he was standing outside the taxi.

4.Those 4 plastic bags were examined and found to contain a total of 29.3 grammes of a solid containing 26.5 grammes of cocaine.  The estimated street value of the cocaine was HK$50,982.

Criminal record

5.The defendant has 5 previous convictions and three of them related to dangerous drug offences including one trafficking offence. 

Mitigation

6.The defendant, aged 32, is single and received education up to Form 5.  He lives with his parents and younger brother in a public housing estate unit in Ngau Tau Kok.  Since leaving school in 2000, he has been working as a truck driver.  In June 2015, he was earning $18,000 per month.  Both he and his brother make financial contributions to his family.  The family is financially sufficient.  He has no traffic record relating to his driving manner.

7.He started to take drugs under peers’ influence and due to work pressure.  He worked hard to save money and had to work long hours, as he planned to get married.  As such, he was unable to live a balanced life and resorted to taking drugs.  In 2012, the marriage plan was postponed by reason of his imprisonment for the trafficking offence.  His girlfriend has not given up on him. 

8.Unfortunately, after his release from prison, he met his friends living in the same public housing estate and was lured into taking drugs again.  This led to his conviction for an offence of possession of a dangerous drug in 2015.

9.On the day in question, he bought the 4 packets of cocaine and intended to consume part of the drugs.  He cooperated with the police and made confession at the first available opportunity.  Nothing incriminating was found at his residence.  The defendant’s urine test conducted by the Correctional Services Department subsequent to his arrest showed that positive results of amphetamine and cocaine.  The defendant was clearly a drug addict.

10.As part of the drugs was for the defendant’s own use, Ms Hung asks the court to consider giving the defendant a discount within the range as proposed in HKSAR v. Chow Chun Sang, CACC 135/2011. 

11.Ms Hung refers the court to a number of authorities[1] relating to sentencing including the sentencing guideline.   

Sentence

12.The sentence upon conviction after trial for trafficking in cocaine between 10 and 50 grammes is between 5 and 8 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in 26.5 grammes of cocaine will therefore attract a starting point of about 75 months. 

13.The defendant’s conviction of possession of a dangerous drug offence in 2015 indicated that he had a relapse in drug addiction.  Although the defendant has one similar previous conviction in 2012, he does not, in my view, have a lengthy record.  I don’t consider it as an aggravating factor.

14.I have carefully considered everything said by Ms Hung on behalf of the defendant in mitigation including the authorities cited.  On the issue of own use, the Defence has not put forward any assertion or any evidence as to the quantity of cocaine for own use.  On the other hand, the Prosecution’s stance is that they have nothing to rebut this suggestion.

15.I have considered the decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and the range of factors for determining the issue of drugs for own use set out therein.  I note that the subject drugs were contained in 4 packets and the defendant’s first conviction record was in 2008 related to possession of a dangerous drug.  Given his drug taking history, his drug related convictions, his urine test being drug positive and the way in which the cocaine was packed, I am prepared to accept the suggestion that some of the drugs were for his own use may be true. 

16.It is suggested that the defendant was on his way home.  This does not appear to tally with the fact admitted by the defendant that he requested the taxi to take him to Shun Ning Road, Cheung Sha Wan.  In any event, it is clear that the drugs were found on the street.  The latent risk of some of the drugs for own use finding their way to the hands of others certainly existed. Further, possession of drugs carries a sentence in any event.  I am satisfied that starting point should be reduced by 7½ months to one of 67½ months.  I don’t find that there are any other mitigating factors which justify a reduction.

17.Giving a full one-third discount to the defendant for his guilty plea, I sentence the defendant to a term of 45 months imprisonment. 

[1](i) The Queen v Lau Tak Ming and Another, CACC 230/1989; (ii) Attorney General v Leung Pang Chiu, CAAR 17/1985; (iii) HKSAR v Owusu Daniel, CACC 120/2016; (iv) HKSAR v Lau Kim Fung, DCCC 730/2010 and (v) HKSAR v Chan Chi-man, DCCC 426/2012