HKSAR v. Hui Kam Kiu

DCCC 1064/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1064 OF 2016

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REASONS FOR SENTENCE

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

Summary of Facts

2.About 10:00 p.m. on 1 September 2016, PCs 15863 and 10383 stopped the defendant for enquiry at a convenience store situated at Ground Floor, No.52 Ma Tau Chung Road, To Kwa Wan.

3.Upon search, the police officers found in a shopping basket, which was placed beside the defendant, a pink plastic bag containing a white plastic bag containing a black bag containing 3 plastic bags which contained a total of 34.6 grammes of a solid containing 28.3 grammes of cocaine.

4.Under caution, the defendant claimed that the drugs belonged to him for self-consumption.  He picked them up from the street.  The defendant's home was searched, but nothing suspicious was found.

5.In his cautioned interview, the defendant claimed that before he was intercepted by the Police, he picked up the drugs next to a rubbish bin.  He intended to bring them home for self-consumption. On his way home, he entered a convenience store to buy some food.  After placing the drugs in the shopping basket, he was intercepted by the Police. The defendant claimed that he has been a cocaine user for 8 to 10 years.

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

Mitigation & Sentence

7.The defendant is 41 and divorced.  He has 1 conviction record, which was a similar offence.  For that previous offence, he was sentenced to 40 months' imprisonment in July 2014.  Defence solicitor Mr. LUI informed me that the defendant was a renovation worker and a part-time transportation worker earning $18,000 per month.  He has 2 children (aged 16 and 15 respectively), who live with the defendant's ex-wife. 

8.In mitigation, Mr. LUI submitted that the defendant began to use cocaine at the age of 20.  He tried to stayed away from drugs after his release from prison at the end of April 2016.  Unfortunately, he mixed with the wrong peers again.  At the time of the offence, the defendant was in financial difficulty due to insufficient work to do.  Mr. LUI further submitted that the defendant intended to retain 6 grammes[1] of the cocaine for self-consumption and sell the rest to his friends.  Shortly before his arrest, he had just picked up the drugs and was on his way home.

9.Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects.  A clear message must be conveyed to the general public that "drug trafficking" is a dead serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

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.  In the present case, the defendant trafficked in 28.3 grammes of cocaine.  The appropriate starting point is 75 months.

11.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. There is no evidence to rebut the defendant's claim that he is a cocaine user.  As to the quantity claimed for self-consumption, prosecuting counsel Mr. Hotten submitted that 6 grammes (out of 28 grammes) seem to be a plausible quantity.  In the absence of evidence which shows otherwise, I am prepared to reduce the sentence to 69 months[3] to reflect the discount for self-consumption.

12.Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 46 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 46 months' imprisonment.