HKSAR v. Chiu Chun Yin

DCCC 216/2021

[2021] HKDC 629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 216 OF 2021

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REASONS FOR SENTENCE

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1.Mr Chiu pleaded guilty before me to two charges of Trafficking in a dangerous drug, both contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of Charge 1 are that he, on 9 November 2020, on a taxi bearing registration mark SE4377, outside the main entrance of Ngau Tau Kok Market, No 183 Ngau Tau Kok Road, Ngau Tau Kok, in Hong Kong, unlawfully trafficked in a dangerous drug, namely cocaine.

3.The particulars of Charge 2 are that he, on the same date, outside No 92 Sung Wong Toi Road, Ma Tau Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2.74 grammes of a solid containing 2.32 grammes of cocaine.

Facts admitted by Mr Chiu

4.On 9 November 2020, at around 3 am, Mr Chiu boarded a taxi in Sham Shui Po.  Mr Chiu directed the taxi to go to the main entrance of Ngau Tau Kok Market where a second passenger boarded but who soon left the taxi.  After stopping for a while in To Kwa Wan, the taxi headed towards Lok Fu where Mr Chiu resided.

5.The taxi reached a police road block outside 92 Sung Wong Toi Road. Police searched Mr Chiu and found in his underpants one plastic bag containing 19 plastic small packets containing a total of 2.74 grammes of solids containing 2.32 grammes of cocaine (“the Drugs”).

6.The estimated street value of the Drugs was around $6,686.

7.Mr Chiu also had with him one mobile phone and cash of $5,476.

8.Under arrest and caution, Mr Chiu referred to the Drugs as crack cocaine.

9.During a subsequent cautioned VRI, Mr Chiu said:-

(a)  At about 2:30 am on day of offence, following the instructions of a man over the phone, he picked up the drugs from a bush at Pak Tin Estate;

(b)  At about 2:45 am, he received a call from a stranger; as a result he took a taxi to Ngau Tau Kok Market; he sold to the stranger 3 small packets of drugs he had earlier collected;

(c)  Of the money on him, $900 came from that stranger;

(d)  He bought the drugs (including the 3 small packets sold)  at $150 per small packet; he left $3,300 at the bush; and

(e)  Strangers would call him and he would sell to them drugs at $300 per small packet.

10.Mr Chiu now admits he sold 3 small packets of cocaine of total weight of about 0.37 gramme to the man at Ngau Tau Kok Market; he also admits he possessed the Drugs for the purpose of trafficking.

Criminal record

11.Mr Chiu has one previous conviction: he was sentenced on 7.12.2020 to DATC for possession of a dangerous drug.

Antecedents

12.Mr Chiu is aged 20 now and at the time of the offences, educated to F2 level, unemployed at the time of arrest.  He resided in Lok Fu.

Mitigation

13.Mr Ricky Li of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chiu.

14.The following is a summary of the mitigation submissions.

15.Mr Chiu became a transportation worker at his father’s logistics company when he was 15.  Before arrest, he was living with his parents (60 and 50, both working) and a younger sister who is still studying.  An elder brother lives elsewhere.

16.The only criminal record of Mr Chiu relates to possession of a dangerous drug (1.3 grammes of cocaine).  Mr Chiu admits he committed the present offence while on bail for that offence for which he is serving a DATC sentence.  He has served his DATC sentence for about half a year and is rid of his drug addiction and he is likely to be released therefrom on 2 June 2021.  Mr Chiu plans to obtain a driving licence and work as a lorry driver in his father’s logistics business.

17.Mr Chiu came to know bad peers when he was 16 and developed the habit of taking cocaine until the day of arrest.  He took 3 small packets of cocaine per day (about 0.1221 gramme).  He would purchase 6 to 9 packets of cocaine from the same drug dealer each time ie sufficient for 2-3 days.  He would spend over $1,000, sometimes nearly $2,000 for each purchase.  On the day of offence, the drug dealer suggested to him, “Why not get more drugs from me, and take part in the drug dealing together?  By re-selling the drugs, you can subsidize your own spending in cocaine consumption.”  Being tempted, Mr Chiu purchased 22 packets of cocaine (0.1221 gramme each, totaling 2.6862 grammes).

18.At the time of the arrest, 3 packets were already sold (Charge 1).  A total of 19 packets remained (Charge 2).

19.Mr Chiu invites the court to accept 6 packets of cocaine (6 x 0.1221 gramme = 0.7326 gramme) out of the remaining 19 packets were for his own consumption.

20.Mr Li submitted that 6 packets out of 22 packets (Charges 1 and 2 together) constitutes around 27% which is a significant portion.

21.According to AG v Pedro Nel Rojas [1994] 1 HKC 342 and R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in up to 10 grammes of cocaine attracts a sentence after trial of 2 to 5 years’ imprisonment.  Using the arithmetic approach alone, trafficking in 2.6862 grammes (Charges 1 & 2) of cocaine would attract a starting point of around 34 months’ imprisonment.

22.Mr Chiu pleaded guilty at the earliest opportunity, he can expect to receive a 1/3 discount on sentence.

23.Further, Mr Li invites the court to apply the principle in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 (English translation at 1121), at para 19:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficked was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasis that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

24.Mr Li also submitted three District Court sentencing cases which I do not find useful in my task of sentencing Mr Chiu.

25.Lastly, Mr Li invites the court to consider the totality principle in light of the fact that Mr Chiu is still serving a term in DATC.

26.Mr Li submitted on behalf of Mr Chiu 5 mitigation letters (all in Chinese) written respectively by Mr Chiu, Mr Chiu’s father, mother, elder brother, and younger sister.  Contents are generally that Mr Chiu committed the offence because he needed the money to finance his drug consumption; he is deeply regretful and wants to turn over a new leaf and will not re-offend; the parents will guide him towards the right path with love and care; that he is a loving and responsible brother; the court’s mercy and a lenient sentence are asked for.

Sentence

27.Trafficking in a dangerous drug is a serious offence and for this reason a deterrent sentence is customarily imposed.

28.Relative youth is not a mitigating factor in such offences.

29.Regarding the submission of self-use, I accept that Mr Chiu was a cocaine user at the time of the offences.  However, I also note that Mr Chiu did not say anything about using any particular part of the drugs seized for self-consumption and that he admitted committing the present offences entirely out of financial needs.  In the round, I feel safe to accept only that 3 small packets out of the total 22 encompassed by Charges 1 & 2 were intended for Mr Chiu’s self-consumption.  That accounts for just under 14% of the total.  I would have taken off 3 ½ months from the overall starting point of 34 months that I will adopt globally in this case if not for the presence of the aggravating factor of Mr Chiu committing the present offences while on bail for the previous possession offence.  The two simply cancel each other out.

30.Mr Chiu pleaded guilty in good time and so is entitled to a discount of 1/3.  That takes the global sentence down to 22 months and 20 days.  As an act of mercy, I will knock off 20 days to make a round figure of 22 months.  There are no other mitigating factors of sufficient weight to warrant any further reduction.

31.Mr Chiu’s detention in the DATC was for the purpose of getting rid of his previous drug addiction.  It is in a category wholly different from an imprisonment sentence.  I will not therefore adjust the present sentence in its light.

32.I will impose the following individual sentences after plea.

(Mr Chiu, please stand)

33.For Charge 1, Mr Chiu will go to prison for 16 months.

34.For Charge 2, Mr Chiu will go to prison for 21 ½ months.

35.In order to arrive at the final sentence of 22 months, I order that ½ a month of the sentence on Charge 1 to run consecutively to the sentence on Charge 2, thus making an aggregate sentence of 22 months’ imprisonment.  The DATC detention order on Mr Chiu shall cease to have further effect by operation of law.