HKSAR v. Rai Shiva

DCCC 437/2017
[2018] HKDC 40

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2017

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of trafficking in 9.39 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1] and one charge of possession of nineteen cans of beer for sale without a liquor licence, contrary to 17 (3B) and 46 (1) and (3) of the Dutiable Commodities Ordinance[2].

2.Full particulars of the offences are set out in my verdict delivered earlier today. In summary in the early hours of 8 January 2017 DPC 8422 intercepted male Chung Po Shan in Hart Avenue, Tsim Sha Tsui.  Chung Po Shan led DPC 8422 and DPC 9510 to premises on the 13th floor of Tung Wui Commercial Building, No. 27 Prat Avenue (“the premises”). 

3.After Chung Po Shan pressed the doorbell of the premises the defendant opened the inner door.  Two other males and one female were found sat inside the living room by the table shown in photograph 15 with glasses and alcoholic drinks on.

4.DPC 9510 searched the defendant and found inside the left front pocket of his trousers a transparent re-sealable bag containing sixteen smaller re-sealable plastic bags containing 2.73 grammes of cocaine.  Under caution the defendant admitted that he planned to sell the cocaine to the customers to make some money.   DPC 9510 also found a bunch of five keys from the defendant’s trousers’ pocket.

5.DPC 6826 searched the premises and found inside a safe in the kitchen an electronic balance; a paper card; a large quantity of empty re-sealable plastic bags and a transparent re-sealable bag containing thirty-eight smaller re-sealable plastic bags containing 6.66 grammes of cocaine.  The nineteen cans of beer were found inside the refrigerator in the kitchen. 

6.Under caution for trafficking in the drugs found in the safe the defendant admitted that all the cocaine in the safe belonged to him and that he planned to sell the cocaine to customers for alcoholic drinks to make money.

7.Under caution for operating an unlicensed bar the defendant admitted that he was the person in charge of the unlicensed bar. 

8.In a subsequent video recorded interview the defendant admitted, inter alia, that he bought about 20 grammes of cocaine for $8,000-$9,000; divided the cocaine into smaller bags for sale at $400; placed the cocaine in the bar, some in the safe and some in his trousers’ pocket and sold the cocaine to earn money but did not sell any that day; the electronic scale; a paper card and re-sealable transparent plastic bags were for measuring and dividing the cocaine; and that he operated the premises as a bar; one of the keys found on him was for the main gate and that he sold the cans of beer to customers.

Mitigation

9.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chan.  I take into account the defendant has no similar previous convictions. 

Trafficking in a dangerous drug

10.The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming[4]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment. 

11.I am satisfied the proper starting point after trial for 9.39 grammes of cocaine is 4 years and 9 months’ imprisonment.   

12.Mr Chan submits that the court should accept the defendant’s evidence that prior to arrest he had consumed cocaine and therefore there was a possibility the defendant may consume some of the cocaine before selling to the customers. 

13.I have no hesitation in rejecting this submission.  Having found that all the cocaine was for trafficking and rejecting the defendant’s evidence that the drugs found in his trousers’ pocket were for his own consumption, there is in my view no basis upon which to consider part of the drugs may have been for the defendant’s own consumption. 

14.The defendant is sentenced to 4 years and 9 months’ imprisonment.

Possession of liquor for sale without a liquor licence

15.The maximum sentence for possession of liquor for sale without a liquor licence is a fine of $1,000,000 and imprisonment for 2 years.  This being the first offence contrary to the Dutiable Commodities Ordinance and the quantity of alcohol being small, I am satisfied a short term of imprisonment is appropriate.

16.The defendant is sentenced to 14 days’ imprisonment. 

17.Although separate and distinct offences I am satisfied the sale of drugs and alcohol was part and parcel of the same operation.  In the circumstances I order the sentences to be served concurrently.  

18.The total sentence to be served by the defendant is 4 years and 9 months’ imprisonment.