HKSAR v. Law Chiu Cheuk

HCCC 35/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 35 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before me to two counts of trafficking in dangerous drugs. The 1st count involved 19.5 grammes of cocaine and the 2nd count a larger amount of 36.7 grammes of cocaine.

The defendant had been committed to this court for trial on 15 January 2016 and, accordingly, the revised discounts set out in the judgment of Vice President Lunn in HKSAR v Ngo Van Nam, CACC 418/2014, delivered on 2 September 2016, do not apply.

The facts of this case are that on 13 June 2015, at about 6.30 pm, the defendant was seen by police on an anti-narcotics operation, driving a private vehicle into a residential estate at Tin Shui Wai. The defendant parked his vehicle in an available parking space, alighted from the vehicle and met a 15-year-old boy. The defendant then gave the boy a packet containing the drugs set out in the 1st count. Police then intercepted the defendant and the boy and the boy took out the packet of drugs from the front of his jeans where he had located it and gave it to the police.

Both the boy and the defendant were arrested. The defendant said, under caution, that he sold the cocaine to the boy because he needed money. The vehicle of the defendant was then searched and two resealable plastic bags were found hidden under the dashboard. They contained the drugs the subject of the 2nd count. Under caution, the defendant said he intended to sell those drugs to another person or persons.

So far as the 1st count is concerned, given the nature and quantity of drug involved, being 19.5 grammes of cocaine, an appropriate starting point of sentence would be 5 years 6 months’ imprisonment.

The prosecution seek, in regard to the 1st count, an enhancement of sentence pursuant to section 56A of the Dangerous Drugs Ordinance. That legislation envisages that a sentence must first be arrived at before the question of enhancement and its degree is determined. For that reason, in my view, it is not the starting point of sentence which is enhanced but the final sentence thought otherwise appropriate by the court. In this way, enhancement of sentence differs from the application of factors of aggravation of sentence.

Accordingly, from the starting point of sentence, I allow the defendant the only mitigation of any substance available to him, that is his plea of guilty. That results in a sentence of 3 years 8 months’ imprisonment.

In my view, given the substantial youth of the defendant but keeping the overall sentence in perspective, I enhance the sentence to one of 4 years 4 months’ imprisonment. That is an enhancement of 8 months’ imprisonment.

As far as the 2nd count is concerned, no question of enhancement arises as there is no involvement of minors. Given the quantity of drug involved, I take a starting point of sentence of 7 years’ imprisonment.

Again, the only mitigating factor is the defendant’s plea of guilty. Allowing a one-third discount results in a final sentence of 4 years 8 months’ imprisonment.

In considering totality of sentence, I take into account the aggregate amount of the drugs in the two counts, being 56.2 grammes of cocaine. That would have resulted in a notional starting point of sentence of 8 years’ imprisonment. Allowing for mitigation, that would have been reduced to a notional final sentence of imprisonment of 5 years 4 months prior to any enhancement.

Enhancement to the degree appropriate to the present case would have arrived at a sentence of 6 years’ imprisonment. Bearing that in mind, I order that 1 year 8 months of the sentence imposed in respect of the 2nd count be served consecutively to the sentence imposed in respect of the 1st count.

That results in a totality of sentence of 6 years’ imprisonment.