HKSAR v. Chu Man Kit

DCCC 56/2022

[2022] HKDC 1461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 56 OF 2022

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REASONS FOR SENTENCE

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

2.Particulars are that he, on 22 September 2021, outside Metropark Hotel Mongkok, No 22 Lai Chi Kok Road, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 8.51 grammes of a solid containing 6.99 grammes of cocaine.

Facts admitted by Mr Chu

3.On 22 September 2021, Mr Chu was seen seated in the driver seat of a taxi at outside Metropark Hotel Mongkok.  Patrolling police officers felt suspicious about the circumstance and intercepted him and made enquiries.

4.Mr Chu revealed that there was dangerous drug hidden inside the compartment between the gear lever and the driver seat.

5.Upon search, the police found inside the said compartment a tissue paper wrapping the following items :-

(a) A resealable transparent plastic bag containing 44 plastic bags containing a total of 7.41 grammes of a solid containing 6.01 grammes of cocaine;

(b) A resealable transparent plastic bag containing 4 plastic bags containing a total of 0.78 gramme of a solid containing 0.69 gramme of cocaine;

(c) A resealable transparent plastic bag containing 0.16 gramme of a solid containing 0.14 gramme of cocaine; and

(d) A resealable transparent plastic bag containing 0.16 gramme of a solid containing 0.15 gramme of cocaine.

6.Mr Chu had three mobile phones and cash of $20,366 with him.

7.The total estimated street value of all of the drug was around $11,420.

8.Under caution, Mr Chu stated that :-

(a) The dangerous drug was given to him by “Ah Hung” two days ago; and

(b) He was only responsible for driving.

9.Mr Chu now admits he was in possession of all of the drug for the purpose of unlawful trafficking.

Criminal record

10.Mr Chu has a clear record.

Antecedents

11.Mr Chu is aged 41 (40 at the time of the offence), single, educated to F5 level.  He was a taxi driver earning around $10,000 net per month at the time of arrest.

Mitigation

12.Mr Timothy Lam of counsel mitigated on behalf of Mr Chu.  The following is a summary of the mitigation submissions.

13.Mr Chu had been living with and taking care of his mother (nearly 70). He is not a user of drugs.

14.For trafficking in up to 10 grammes of cocaine, the appropriate sentence is within the band of 2 to 5 years’ imprisonment:  AG v Pedro Nel Rojas [1994] 1 HKC 342 and The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370.

15.Mr Lam relied on one passage in Lau Tak Ming (at 385F-G) to plead that a sentencing court may take into account an offender’s clear record when deciding what is a proper sentencing discount.

16.Mr Lam emphasized the following mitigating factors:-

(a) Mr Chu pleaded guilty at the first opportunity;

(b) He was fully cooperative with the police;

(c) He has a previous clear record;

(d) He has a general good character: he had made regular donations to a charity in better times;

(e) He committed the offence because he was in heavy gambling debts; and

(f) He promises not to re-offend: he has recently petitioned for his own bankruptcy.

17.Mr Lam referred to a number of cases of individual sentencing (including one Court of Appeal case) relating to similar amounts of cocaine/heroin before suggesting a starting point of 42 months for Mr Chu.

18.Mr Lam also referred to one District Court sentencing case (DCCC 124/2011) in which the defendant was given an extra discount of 2 months because he had no previous criminal record.

Sentence

19.Trafficking in a dangerous drug is serious offence for which the Court of Appeal has laid down tariff sentences for different types and amounts of drug.  Within each band of the particular tariff, a sentencing court may fine-tune a starting point in light of the particular circumstances of the offence and the offender.

20.However, adopting a slightly lower starting point (or alternatively giving an extra sentencing discount) as a norm because of an offender’s previous clear record has the danger of facilitating the person higher in the drug trade to lure a person with a clear record to do his bidding.

21.There being nothing to take this case or this defendant out of the ordinary, I decline to take into account Mr Chu’s clear record when considering what starting point I shall adopt or what sentence I will impose on him.

22.With respect, other cases of individual sentencing are not helpful to the task before me either.

23.For 6.99 grammes of cocaine, the starting point according to pure mathematical calculation is 49.2 months.  Taking into account all that has been said on Mr Chu’s behalf, I shall adopt a slightly lower starting point of 48 months.

24.Mr Chu pleaded guilty in good time; for that he shall be entitled to the full 1/3 discount.  There is nothing else in the mitigation that would justify lowering the sentence further.

(Mr Chu, please stand)

25.The sentence on Mr Chu is 32 months’ imprisonment.