HKSAR v. Lok Ka Ho Kenny

DCCC 289/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 289 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The particulars are that that occurred on 5 January in Yau Ma Tei in Kowloon and the narcotic quantity of the drug trafficked was 38.72 grammes of cocaine.

2.The defendant was in fact stopped in a stop-and-search in the evening of 5 January by uniformed police officers.  He had a leather pouch under his left arm.  Inside that pouch, two white envelopes were found with the words “A1” and “A3” written on them.  They both contained drugs.  Inside A1 there are a large number of transparent resealable bags containing 18.9 grammes and 9.72 grammes of cocaine.  In A3 there was a separate transparent resealable bag, which contained a total of 10.1 grammes of cocaine.

3.The defendant was arrested and some cash was found on him.  The value of the drugs was $60,480.64.

4.Defendant’s antecedents show that he is now aged 21.  He has one non-relevant conviction.  In 2014 he was sentenced to probation for an assault. 

5.His mitigation shows that he had worked as a financial consultant after leaving school.  He was the only son of the family and he lived alone but adjacent to his parents.

6.The defendant’s mitigation was that he came to know a person who had induced him to commit the offence, and he would receive a reward of $1,000 for carrying drugs from one place to another, acting as a courier.  Part of the arrangement was that he would have kept the A3 envelope for himself.

7.He had, he says, been taking drugs for some two years before the offence, using it two to three times a week, consuming between half to a gramme each time.  The cocaine in A3 would have lasted him about 20 days.

8.From this, the defendant does not, in my understanding, consider himself to be an addict of the drug, just a consumer, and he was spending about $8,000 each month on drugs and the commission of this offence was partly to finance his own consumption of the drug.

9.Now, as far as the determination of sentence is concerned, the trafficking in drugs such as cocaine is governed by guideline sentencing.  The tariff for this quantity of drug which lies between 10 to 50 grammes is in the region of 5 to 8 years’ imprisonment.  The actual narcotic quantity is 38.72 grammes, so, by a calculation of the starting point done by defence counsel, the starting point would be in the region of 85.8 months.

10.The defendant is naturally entitled to a one-third discount for his plea of guilty. 

11.It is also submitted there should be a discount for his consumption of the drug.  It is permitted by the court to take that into account when determining the actual starting point for sentence and, were the defendant to consume a significant quantity of the drug, then that is a basis on which the starting point for sentence can be reduced, and the deduction for that, ahead of mitigation, would lie between 10 to 25 per cent, depending on the determination of an individual court.

12.As far as this case is concerned, a significant fact, pointed out by the defence, is that the drugs were in fact divided into quantities, separate quantities, and, more, the defendant says his particular quantity was in a separate envelope completely, which lends some support to the proposition contained in this case that about up to a third of the drugs would have been for his own consumption.

13.I accept that, in the circumstances of this case, it is permissible to allow for a discount on that basis.  The process I shall adopt is I will adopt an original starting point for sentence, based on the narcotic quantity of the drug and the general guideline, of 85 months’ imprisonment.  That is 7 years 1 month. 

14.I shall allow a deduction for self-consumption of the drug in a region of between 10 to 15 per cent, which I shall capitalise at 13 months.

15.The starting point for sentence is now 72 months’ imprisonment.  That is 6 years.

16.After a reduction of one-third for the defendant’s plea of guilty, that leaves a sentence of 48 months’ imprisonment, which is 4 years’ imprisonment.  So the sentence will be one of 4 years’ imprisonment.