HKSAR v. Chiu Kai Yin

DCCC 894/2023

[2024] HKDC 629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 894 OF 2023

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to trafficking in a dangerous drug on the basis that he was in possession of a dangerous drug for the purpose of unlawful trafficking in it.

2.The facts have established the defendant appeared to be in charge of a vehicle in which some 3.87 grammes of cocaine as a narcotic content was found in 30 resealable plastic bags found in the glove compartment of that vehicle.

3.The defendant had a key to the vehicle.  His fingerprints were in the vehicle.  In fact, the vehicle was rented by another person called Mr Chan. The facts appear to show the defendant was the minder of the drugs inside the vehicle.

4.Total value of the drugs as crack cocaine would be $6,404.94.

5.The defendant himself is now aged 20; he would have been 19 at the time of his arrest for this matter.  He is a person of clear record, educated to diploma level.  He has worked as a waiter and he was incarcerated for about one year prior to the hearing today.

6.As far as the approach to sentence is concerned, the drug we are dealing with here is cocaine.  The applicable tariff for this drug is the one for heroin and the tariff for heroin can be found in the case of R v Lau Tak Ming [1992] HKLR 370.  Following that tariff, the quantity of 3.87 grammes of cocaine would fall within the guideline of within 2 to 5 years’ imprisonment.  It would appear that on a purely mathematical calculation that would lead to a figure of some 37 months’ imprisonment.

7.The defendant in this case is only aged 20 and he is subject of course to Section 109A of Cap 221 which provides “The court should not sentence to imprisonment unless there is a view that no other method of dealing with him is appropriate” and I am to look at the information about his circumstances and any other information.

8.One of the most important factors in this case is the period of the defendant’s detention on remand.  I consider that in view of that it would be inappropriate to take any other approach than to consider a term of imprisonment.  Inevitably an immediate term of imprisonment would be appropriate for these offences but I do bear in mind when formulating the sentence, both the defendant’s youth, his clear record and the family support that has been shown in this hearing.

9.I also bear in mind when approaching sentence the case of HKSAR v Yusuph [2021] 1 HKLRD 290, which enjoins the court to take a six-stage approach and frees the court from taking an entirely mathematical calculation as to the proper starting point for sentence.  I have to look at the overall circumstances including the defendant’s culpability.

10.On the basis of the facts that have been admitted, the defendant’s culpability is on the low side in respect of the trafficking of these drugs.  I do of course take as my primary guide the mathematical calculation but I will take the initial starting point for this defendant of 33 months' imprisonment. I am going to reduce that by 3 months to reflect the defendant’s youth and clear record.  There appears to be no other way of reflecting these things.  This reduces the final starting point for sentence in respect of charge 2 to one of 30 months' imprisonment.  Defendant is entitled to a discount in respect of his plea of guilty.  It appears to be a plea that was made at an earliest possible opportunity and that leads to a final sentence of imprisonment of 20 months’ imprisonment.