HKSAR v. Man Kam Shing

DCCC 601/2017

[2018] HKDC 33

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 601 OF 2017

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REASONS FOR SENTENCE

1.Man Kam Shing you have pleaded guilty to one charge of trafficking in 48 grammes of a solid containing 34.7 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 8:15 p.m. on 7 April last year you were intercepted by the police outside Nos. 230-236 Temple Street in Yau Ma Tei.  The police found from the right pocket of your jeans one white plastic bag containing two packets inside which was the cocaine.  The police also found on you $3,365.60 and two mobile phones. 

Mitigation

3.In passing sentence, I have carefully considered everything said on your behalf by Mr Lam including that you planned to remarry later this year.

Starting point

4.The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3].   Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years’ imprisonment.  I am satisfied the proper starting point after trial for 34.7 grammes of cocaine is 6 years and 10 months. 

Aggravating feature

5.You have appeared in court on twelve occasions, amassing a total of sixteen convictions, seven of which are for offences relating to dangerous drugs including trafficking in drugs in 2008 and 2014.  In July 2014 you were sentenced in the District Court to 4 years and 4 months’ imprisonment for trafficking in dangerous drugs.  You were released from prison on 23 January 2017[4] and committed the present offence just over two months later.

6.Not only was the offence committed shortly after your release from prison but was also committed whilst you were on bail for another drug offence committed on 10 March 2017 and for which you were sentenced in the Kowloon City Magistracy on 18 October 2017 to 4 months’ imprisonment[5].

7.By reason of your persistent offending I am satisfied the starting point is to be increased by 6 months to 7 years and 4 months’ imprisonment. 

Own use

8.You told the police the cocaine was for your own consumption; you started to consume cocaine in 2012 and consumed $500-1000 worth of cocaine per day. 

9.Mr Lam says that part of the cocaine was for your own consumption.  In support Mr Lam submits the urine test result on admission to Lai Chi Kok which shows a positive result for cocaine. 

10.In the circumstances I am prepared to accept that a small quantity of the cocaine may have been for your own consumption. In deciding how much weight should be attached to this fact I have considered the decision in HKSAR v. Wong Suet Hau[6], in particular paragraphs 33 and 34.  The Court of Appeal said that in most cases the difference in sentence, if any, will be slight. 

11.Taking into account that the drugs were carried on the street; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 10 months to one of 6 years and 6 months’ imprisonment, which is equivalent to a discount of almost 12% from the starting point. 

12.Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years and 4 months’ imprisonment.