HKSAR v. Chiu Shun Hung

DCCC 951/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 951 OF 2016

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Reasons for Sentence

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1.In this case, the defendant faced and has pleaded guilty to a single charge of trafficking in a dangerous drug.

2.This offence took place on 20 July 2016 at a premises in King’s Road in Quarry Bay, and the amount of drug trafficked is agreed to be 16.73 grammes of the narcotic cocaine.

3.The facts are, simply stated, police conducted an operation at the premises in King’s Road in Quarry Bay, the defendant being intercepted when he left those premises.

4.The defendant was immediately searched, and three plastic bags containing 0.45 grammes of cocaine were found in his underwear.

5.Under caution, he said that was for his own consumption.

6.This personal search was then followed by a house search of the premises, and a number of bags of cocaine were found. Seven plastic bags were found by a washing machine; 18 plastic bags were found by a mirror cabinet inside the washroom; and further drugs were found in a plastic bag in a water heater inside the washroom.  At the same time, on the washing machine items were found which would be useful in the breaking down of the drugs into saleable units.  There were two electronic scales, a metal needle, a plastic bag containing resealable plastic bags, and a stack of empty resealable plastic bags.

7.The defendant at the time said all the drugs were for his self consumption, but he would sell drugs to friends.  This was expanded upon in a record of interview conducted with the defendant.  He agreed he lived at the premises where the drugs were found.  The drugs found in the premises and in his underwear belonged to him.  He had bought them for some $16,500.  He used the metal needle that had been found to break the cocaine solid into pieces, then measured them by the scale, repacking them into plastic bags.  He told each bag for $200 to $300.

8.In total there were 29 plastic bags containing the 16.73 grammes of cocaine, with a street value of $46,868.

9.The defendant admits he was in possession of the 29 packets for the purposes of unlawful trafficking in them.  He says he would consume some of the drug and sell some of the drug to friends and acquaintances and was a small-scale trafficker in them.

10.As far as the defendant’s background in this case is concerned, he is a person of clear record to date, although I do know that he was on police bail for this offence in relation to another offence, which I will deal with subsequently.

11.The defendant’s background is I think I would classify as somewhat unfortunate.  He has had to live in children’s homes in the past.  He had initially a fair academic performance in his primary, but his academic performance deteriorated within secondary education.  This may well be attributable to the difficulty of his family background.  He eventually dropped out of school after completing Form 5, and it is at that point the defendant turned to what I think could be described as a more hedonistic lifestyle.  He tells the probation officer he played gambling electronic games, surfed the internet, and then took up the habit of consuming cocaine, and had triad affiliation with the Sun Yee On.

12.He said he started to consume dangerous drugs at about the age of 16.  He has a girlfriend now.  Something may come from that relationship; one does not know at this stage.  The defendant admits his wrongdoing.  He is remorseful, and hopes to be able to what is described as turn over a new leaf when he is released from imprisonment.

13.Part of the defendant’s mitigation is that he was a consumer, and addicted to cocaine in fact, at the time of his arrest for these drug offences.  A urine specimen was collected from the defendant on 23 July 2016 for an immunoassay test when he entered Correctional Services Department custody.  He was found to be positive for cocaine, which supports, to a certain extent, the defendant’s contention before me by his counsel that he was an addict of the drug and a consumer of the drug.

14.The defendant puts his consumption of the drug at the region of one-third of this quantity.  He would sell the drug in order to fund his own habit of cocaine consumption.

15.I turn to the sentence for this case.  Bearing in mind the defendant’s plea of guilty and his young age - he is still only 21 years old - and the fact that despite his difficult background, this is the first offence that he has committed, the sentencing for cocaine is governed by guideline sentences where the starting points for sentence are largely governed by the operative guideline.  The operative guideline for cocaine is the same as for heroin, which is determined by the case Lau Tak Ming. 

16.The quantity of cocaine here is 16.73 grammes, which falls within the guideline of 10 to 50 grammes, which is a starting point for sentence of between 5 to 8 years’ imprisonment. I must determine where this offence lies on that guideline and where that starting point should be determined.

17.The determination of a starting point is not simply a mathematical and mechanistic determination having regard to the figures.  The figure of 16.73 grammes would put the defendant towards the lower end of that guideline in the region of 5 years’ imprisonment.

18.The other factors I have to consider are the defendant’s clear record, and his young age, and the fact of his addiction.

19.What I shall do in this case is take the lowest point on the guideline as the starting point for sentence in respect of this matter, and that is 5 years’ imprisonment, or 60 months.

20.There are no aggravating factors other than the fact that this was committed whilst on police bail, but for the later offences I will deal with it.  However, I do not think in this case, given the gravity of the matters I am dealing with, I need to increase the starting point for sentence for this defendant.

21.I shall now look at the mitigating factors.  The principal mitigating factor, aside from the defendant’s plea of guilty, is his consumption of a part of the drug.  It has been determined in the Court of Appeal in Hong Kong where a significant portion of the drug is consumed by the defendant, then there can be a deduction from the starting point for sentence of between 10 to 25 per cent of the starting point.

22.In support of the defendant’s contention is the fact that he is a drug addict.  He is a consumer of the drug on his own admission and also the assay test by the Correctional Services Department supports that proposition.  It is difficult to believe that the defendant, if he were a cocaine consumer, an addict, he would be in a room with some 16 grammes of the drug and not consume some of it himself, especially where the defendant was using it to fund his own addiction.

23.In this case, I shall determine that the defendant is a consumer of the drug; that the defendant would have consumed a part of the drug; and that that part of the drug would be a significant proportion of the drug.  Thus the defendant is eligible in this case for a reduction from the starting point of between 10 to 25 per cent. 

24.The defendant’s consumption is only one‑third here.  What I shall do is deduct the starting point by a further 6 months, which is around 10 per cent.  That now gives a starting point for sentence, by my calculation, of 54 months’ imprisonment.

25.The defendant is entitled, due to his indication of plea in this matter, to a one-third discount from that, and that leads to a final sentence on 951/2016 of 36 months’, or 3 years’, imprisonment.