HKSAR v. Mui Sze Chun

DCCC 382/2018

[2018] HKDC 1117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 382 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 8.07 grammes of a solid containing 6.73 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 3:33 a.m. on 6 February this year the police intercepted the defendant outside Po Ping House, Long Ping Estate in Yuen Long.  In the right pocket of the defendant’s coat the police found a car key.  The defendant told the police his car was parked near the bus stop outside Chu Ping House. 

3.Upon search of the car the police found in the storage box between the front seats twenty-six plastic bags containing cocaine and in the tray of the driver’s door a further ten plastic bags also containing cocaine.  

4.The street value of the cocaine at the time of the defendant’s arrest was $10,757.

Mitigation

5.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Chow together with the defendant’s mitigation letter in which he expresses remorse and says he wants to turn over a new leaf and set a good example for his five-year old son.    

Starting point

6.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. 

7.On a purely arithmetical approach a starting point of 4 years’ imprisonment would be appropriate for trafficking in 6.73 grammes of cocaine. 

Own use

8.Under caution the defendant said the cocaine was for his own consumption.    Ms Chow tells the court that the defendant had agreed with two friends to buy the cocaine together to obtain a cheaper price.  The defendant, knowing the supplier, was tasked with purchasing and taking delivery of the cocaine.

9.When the defendant purchased the drugs there were thirteen packets in each plastic bag.  At the time of his arrest the defendant was waiting for his friends. Having waited for over an hour the defendant decided to smoke some of the cocaine which he took from the plastic bag found in the driver’s door.  The defendant says the remainder of that bag was for his own consumption.   

10.The prosecution do not accept that any of the drugs were for the defendant’s own consumption. 

11.Taking into account that the defendant has convictions for possession of drugs in 2010 and 2016, although I note he has never been sentenced to a DATC; on arrest he told the police the drugs were for his own consumption; and in the antecedent statement told the police he was a drug addict and his daily consumption was one gramme of cocaine, I am prepared to accept, without the need for a Newton enquiry, that the cocaine found in the driver’s door may have been for his own consumption.    

12.In deciding how much weight should be attached to the fact some of the cocaine may have been for 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] and HKSAR v Leung Kai Wing cited by Ms Chow[6].

13.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

14.I accept the cocaine found in the driver’s door is a significant proportion.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied taking a starting point of 4 years’ imprisonment that the starting point should be reduced by 5 months to one of 3 years and 7 months’ imprisonment, which is equivalent to a discount of just over 10%. 

Aggravating feature

15.In Lau Tak Ming the Court of Appeal stated that in determining sentence a court may properly take into account any previous history of narcotic offences.  In 2005 the defendant was sentenced to 5 years’ imprisonment for two offences of trafficking and as already mentioned was convicted of possession of drugs in 2010 and 2016.  The defendant also has six convictions for theft.    

16.Notwithstanding the trafficking offences were over ten years ago, I am satisfied that the defendant is a persistent offender and enhance the starting point by 2 months’ to 3 years and 9 months’ imprisonment.

17.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 6 months’ imprisonment.