HKSAR v. Chan Kam Leung

DCCC 302/2019

[2019] HKDC 1389

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 302 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences on this indictment: firstly, resisting police officers and, secondly, trafficking in a dangerous drug.

2.The charges arise out of an operation by the police on 14th January 2019 in the area of the defendant’s home in Tsz Wan Shan in Kowloon.  They suspected the defendant was involved in trafficking activities and intercepted him.  At that time there was some resistance by the defendant, a lack of co-operation and struggling, telling his mother to throw what is described as “rubbish” away.  The defendant was eventually subdued by an off-duty police officer assisting the investigating officers.  Some minor abrasions were suffered by the police officers.

3.The police then searched the home of the defendant and found various items in his mother’s room, which were clearly items that were used in the process of trafficking in the drug cocaine.  A large number of plastic bags and electronic scales were found.

4.As far as the contents of the bags, a quantity of cocaine was found in them, totally 6.05 grammes of the narcotic valued at $19,612.

5.The defendant was arrested for obstructing police and trafficking. 

6.He admitted the obstruction immediately, saying he pushed the two officers because there was “coke” in the home, and then as far as the trafficking was concerned he then accepted responsibility for the drugs.  He said it was in his mother’s room but it was used by him.  He said he bought it for some $5,000, was going to sell it to other people in order to earn some money, and there was a more detailed video recorded interview later in which much the same things were said.  He said he was a habitual drug-user, spending about $500 a month on the habit and he bought the drugs for some $5,000. 

7.The defendant made a full admission at an early stage.  He has indicated a plea of guilty as well.

8.As far as his background is concerned, he is still a young man; he is only 21 years old. 

9.He has a number of convictions related to his problem with drugs and we can see that from a fairly young age in 2013 he was sent to a Drug Addiction Treatment Centre and then later on, for trafficking in dangerous drugs, he was also sent to a Drug Addiction Treatment Centre about a month later.  Finally, in 2017, he was convicted in trafficking again in dangerous drugs, received a sentence of 4 years and 6 months’ imprisonment, and was released from custody in, I think it is 2018, in May of 2018, and subsequently again been arrested again for trafficking in dangerous drugs on 14th January this year.  So the defendant has through his early adulthood spent considerable amount of time in prison and it is all contributable to his consumption of drugs.

10.As far as mitigation is concerned, I am pointed to the defendant’s early plea of guilty, his young age.  I am told that, insofar as he has had employment, he has worked as a car repairer.  It is to be hoped that the defendant can take the opportunity to learn some skill that can provide him with an income and a livelihood that does not involve trafficking in drugs.

11.Now, turning to the approach to sentence, the determination of the starting point for sentence is clear in this case.  There are guideline sentences.  I am dealing here with some 6.05 grammes of cocaine. The guideline for cocaine is the same of the guideline for heroin and this places the determination of the starting point for sentence within the range of 2 to 5 years’ imprisonment.  The range is up to 10 grammes.  So, on that basis, 10 grammes of cocaine would lead to a starting point of 5 years.

12.The defendant’s quantity is less than that.  By my calculation, it is about midway through the guideline and so, in respect of that offence, this being the most important offence, I determine an initial starting point, based on quantity, of 3½ years’ imprisonment.  That is 42 months. 

13.There is the clear aggravating factor of the defendant’s previous convictions.  Although Mr Lam makes the good point that he has previously been sentenced for those offences, the other side of the coin is of course that that has failed to deter him in continuing to traffic in dangerous drugs, and that is an aggravating factor in these cases.

14.What I shall do is increase the starting point on the 2nd charge by some 6 months in order to reflect the defendant’s previous convictions.

15.The defendant of course is entitled on that charge to a full one-third discount, which would lead to a sentence by my calculations on the 2nd charge of 32 months’ imprisonment.

16.I note that it was not put forward in mitigation that the defendant would consume a significant quantity of the drug himself.  I am told he would consume some, but it would not be of a quantity that was sufficient to enable a further discount to the sentence.  So the sentence on the 2nd charge will be 32 months’ imprisonment.

17.There is of course the 1st charge here, the defendant’s resisting of the police officers.  As I observed to Mr Lam, in a case without the drugs, a resistance of this kind would seldom lead to a sentence of imprisonment.  However, it is packaged here together with the trafficking offence.

18.What I shall do, after deduction for plea of guilty, I will impose a sentence of 1 month’s imprisonment on the 1st charge. 

19.However, I do consider that, in relation to the overall criminality of this case, the sentence of 32 months’ imprisonment is sufficient and that will be the sentence of the court and I will achieve that by ordering the 1st and 2nd charges, the sentence in those charges to run concurrently, leading to a total today of 32 months’ imprisonment.