HKSAR v. Tse Chi Pik

DCCC1106/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1106 OF 2008

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Before:   Deputy District Judge Mierczak

Date:     29 January 2009 at 10.27 am

Offence:  Trafficking in a dangerous drug, etc. (販運危險藥物等罪項)

Reasons for Sentence

1.The defendant has pleaded guilty before me today to two matters.  One is the trafficking in 8.19 grammes of cocaine on 21 August 2008.  The other matter is the possession of 4.61 grammes of cocaine on 6 October 2008.

2.As indicated, he has pleaded guilty to both matters and admitted the Summary of Facts put to him.  They are shortly that on the morning of 21 August 2008, police officers approached the defendant coming out of a building in Mong Kok.  Upon a search of him, they found 34 transparent resealable plastic bags of what turned out to be cocaine.  He was immediately arrested and cautioned and claimed that the cocaine was for his self-consumption and asked for a chance. 

3.During a subsequent cautioned interview he gave further details about the 21 August incident, saying he bought the 30-odd packets for $7,000 and intended to meet his friends at a karaoke establishment that evening.  He intended to give the cocaine to his friends for free and they would consume them together at the karaoke.  The money to buy the drugs was given to him by his family members or lent to him by his friends.  Instead of repaying the friends with money, he would give them cocaine. 

4.Subsequent to his arrest on 21 August 2008, the defendant was released on bail.  It was during that bail, on 6 October 2008 that he was again spoken to, this time in a car.  18 plastic bags of cocaine were found, and he was arrested and cautioned in respect of this.  He said that he bought it for $2,000 for his own consumption. 

5.As I say, the defendant has agreed those facts.  I am told he has a clear record.  Normally, because of his age and because of the fact that he has a clear record, I would adjourn this for a report.  But because of the very full and complete mitigation that I have been given which I will refer to shortly, I am of the view that that would elicit very little more. 

6.I am referred to various cases by his legal representative.  Some of them state that the starting points for trafficking in cocaine are as for heroin.  Further cases have been referred to me indicating that if part of the drugs is to be used for trafficking, if the defendant’s  explanation is not inherently incredible, the court may take that into account in respect of a starting point for trafficking.  They do, however, come to the view that social trafficking is an evil anyway, which it is.

7.I was referred to various parts of his cautioned statement that was made by the defendant, some of which are in the Summary of Facts that he has agreed to.  Elements of his background have been put to me.  The defendant was brought up largely by his uncle whom he was under the impression was his father, whereas his true blood father was in mainland China bringing up the uncle’s child.  I am told that a money dispute had developed involving some two to three hundred thousand dollars.  The defendant’s blood father did not want to take sides in this dispute and therefore, as a result of this, the relationship between the defendant’s uncle or his father, as he thought, and the defendant turned sour.  The defendant’s father said he did not understand why the defendant had turned bad the way he had.  He certainly did not need dangerous drugs to make money.  The father always gave him money anyway. 

8.It is put to me that because of this dispute, he treated his friends to the cocaine as he owed them money and it was not for a commercial purpose alone which I find very, very hard to swallow.  Various answers in the cautioned statement were referred to me about the defendant taking cocaine two to three times a day when bored.  It is put the reason that he bought it in bulk was he only paid $7,000 a month for it instead of buying it in smaller lots which would cost him more, $10,000.  The 30 packets odd were sufficient to last him about a month.  As I say, I do not completely accept the mitigation that has been put to me with respect to mainly this being a social trafficking.

9.I am told with respect to the second offence, that it arose because he was addicted to cocaine.  It is acknowledged that it is aggravated by the fact that it was committed whilst on bail for a like dangerous drug offence.

10.I further have been furnished with a letter from the Hong Kong Christian Service dated 24 January 2009 which sets out the circumstances under which the supervisor there knows this defendant.  He has been going there for counselling by a Mrs Cheung since August 2007.  I have read that of course and will take that into account also.

11.The trafficking in dangerous drugs is a very serious offence indeed and the cases suggest that youth or relative youth - you are only 18 years old - is not a mitigating factor in such serious matters as this.  The authorities do suggest that for trafficking in less than 10 grammes, which is the case in the 1st charge here, a starting point of between 2 to 5 years is the appropriate one.  On that basis, for that charge, 8.19 grammes of cocaine would attract a starting point of slightly in excess of 4 years.  However, with respect to the mitigation put to me, I will give some reduction in that starting point, albeit a slight one, as I do not fully accept the mitigation put to me.  Therefore, for the first matter, I will take a starting point of 3 years and 9 months’ imprisonment. 

12.The defendant will get the full discount with respect to his plea of guilty.  Accordingly, on the 1st charge, he will be convicted and sentenced to 2 years and 6 months’ imprisonment. 

13.I next turn to the second matter and, to my mind, that possession of dangerous drug matter is aggravated because of two factors.  One is the fact that it was committed whilst the defendant was on bail for a dangerous drug matter; in fact, only some six or seven weeks later.  The second aggravating factor is the amount of drug he possessed, 4.61 grammes of cocaine, not a small amount.  One then has to look at the latent risk with respect to that amount of drug in his possession.

14.It is for those reasons that in that matter I take a starting point of 18 months' imprisonment.  Again, the defendant will get the full discount with respect to his plea of guilty.  Accordingly, in that matter he will be convicted and sentenced to 12 months' imprisonment. 

15.I next come to the element of totality of sentence.  Taking that into account with respect to the second sentence, 6 months of it will be concurrent with and 6 months consecutive to the previous sentence.  That makes a total head sentence of 3 years' imprisonment which I deem covers the totality of the criminality involved here taking everything into account.