HKSAR v. Ho Yiu Nam

DCCC 967/2017

[2018] HKDC 537

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 967 OF 2017

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REASONS FOR SENTENCE

1.Ho Yiu Nam you have pleaded guilty to one charge of trafficking in 9.01 grammes of a solid containing 8.38 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 00:45 a.m. on 2 August last year you were intercepted by the police at the Tai Wai MTR Station.  While being subdued you dropped from your left hand two small plastic bags containing cocaine.  The police found another two small plastic bags containing cocaine in your right hand and a further six small plastic bags containing cocaine in your shoulder bag. 

3.Under caution and in a subsequent video recorded interview you admitted buying the cocaine from a male for $5,500 at 9 p.m. on 1 August and that when you were arrested you were about to meet a female friend with whom you would consume the cocaine and make a profit of $1,000. 

Mitigation

4.In passing sentence, I have carefully considered everything said on your behalf by Mr Chu together with your mitigation letter.

Starting point

5.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 up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment.  I am satisfied the proper starting point after trial for 8.38 grammes of cocaine is 4 years and 6 months’ imprisonment. 

Own use

6.You told the police the cocaine was for consuming together with a female friend.  Mr Chu says that a quarter of the cocaine was for your own consumption, to which the prosecution have no objection.    

7.Taking into account you have convictions for possession of drugs and have been to the DATC, I am prepared to accept that a quarter of the cocaine may have been for your own consumption.

8.In deciding how much weight should be attached to the fact some of the cocaine may have been for your own consumption, I have considered the decision in HKSAR v Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5]. 

9.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[6].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant portion of the drugs were for own consumption.

10.Mr Chu asks that I give a 12% discount.  This in my view would result in a starting point almost the same as if you were only charged with trafficking in three quarters of the cocaine. 

11.I am not satisfied that a significant portion was for your own consumption.   Taking into account that you were arrested on the street in the early hours of the morning in possession of ten small packets; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied the starting point should be reduced by 3 months to one of 4 years and 3 months’ imprisonment, which is equivalent to a discount of just over 5%. 

12.In R v Lau Tak Ming the Court of Appeal said a sentencing judge may properly take into account previous history of narcotic offences. You have appeared in court on seven occasions, including five occasions for drug offences between 2008 and 2013.  However, taking into account your only conviction for trafficking in drugs was ten years ago and your last drug conviction was four years ago, I do not enhance the starting point by reason of your previous offending.

13.Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 10 months’ imprisonment.   

Suspended sentence

14.On 10 April 2017 you were sentenced in the Fanling Magistracy to 2 weeks’ imprisonment suspended for 3 years for an offence of criminal damage[7].  The offence of trafficking in drugs was committed during the operational period of the suspended sentence. 

15.The two offences being entirely separate and distinct, I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence with the original term unaltered.  Considering totality of sentence, I am satisfied that it would be just to activate the suspended sentence consecutive to the sentence for trafficking in a dangerous drug making a total sentence to be served by you of 2 years and 10 months and 2 weeks’ imprisonment.