HKSAR v. Shek Ka Chun

DCCC1191/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1191 OF 2008

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Before:   H H Judge Whaley

Date:     30 March 2009 at 12.02 pm

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

Reasons for Sentence

1.The defendant has been convicted on his pleas of two charges of trafficking in dangerous drugs, both committed on 15 October last year in Mong Kok.  The 1st charge alleges that he unlawfully trafficked in 2.8 grammes of a solid containing 2.38 grammes of cocaine and the 2nd charge alleges that he unlawfully trafficked in a “cocktail”, as it is sometimes described, of different drugs as particularized in the 2nd charge.

2.The defendant was intercepted by police officers on the night in question as he approached a motor vehicle.  He was searched, and the cocaine, the subject of the 1st charge, was found in a plastic bag in his underpants.  The police officers then used the bunch of keys found on the defendant to gain entry into the motor vehicle.

3.In the vehicle, between the driver’s seat and the front passenger seat, the officers found the drugs as particularised in the 2nd charge, which consisted of further quantities of cocaine and also tablets containing Ecstasy and a very small quantity of “Ice”.

4.The defendant was arrested and he claimed under caution that he had purchased the drugs the previous night in a pub in Tsim Sha Tsui for his own consumption.

5.A quantity of cash was also found upon him, namely $12,817.  The defendant has asserted through his counsel, Ms Lee, that $6,000 of this was the usual monthly payment that his father paid towards his mother’s maintenance, His parents having been divorced some time ago, which his father paid, at least on this occasion, via the agency of the defendant.  In other words, the defendant was going to deliver this to his mother in due course.

6.The remainder of the cash found upon him was money which he had been paid by his customers for delivering goods to them.

7.The defendant is 22 years of age and he has two previous convictions, including one for simple possession of dangerous drugs in July 2005 for which he was fined.

8.Ms Lee has addressed me in mitigation, essentially on the basis of what the sentence would have been for the quantity of cocaine found upon the defendant on the one hand, and on the other hand, what the sentence would have been for the quantity of Ecstasy found upon him.  She urged me to order the sentences to be concurrent.

9.That, however, is not the way that the charges have been split.  The charges have been split according to the quantity found on the defendant’s person, on the one hand (subject of the 1st charge) and in his motor car on the other hand (subject of the 2nd charge).  The quantity which was found in his motor car contains, in addition to the Ecstasy, a considerably larger quantity of cocaine than was contained in his underpants. 

10.The courts have made clear over the years that the fair and the most appropriate way to approach sentencing in circumstances such as the present where there is a cocktail of different drugs involved, is to add up the total quantity of the drugs and sentence on a global basis.

11.If I adopted the approach advocated by Ms Lee, the starting point for the cocaine under the guidelines in RV Lau Tak Ming and others [1990] 2 AKLR 370 would have been at least 5 years’ imprisonment which, affording the defendant the normal one-third discount for his plea of guilty and cooperation, would have resulted in a sentence of 40 months’ imprisonment just for the cocaine.

12.Bearing in mind the guidelines for trafficking in Ecstasy set out in Secretary for Justice and Hii Siew Cheng [2009] 1 HKLRD 1 , the total quantity of Ecstasy being 6.71 grammes of narcotic, I would have adopted a starting point of 3 years’ imprisonment, which would have resulted, after the application of the one-third discount, in a sentence of 2 years’ imprisonment for the total quantity of Ecstasy in the defendant’s possession.

13.However, as I say, that is a purely hypothetical approach to sentencing since the charges are not split up in that way.  Adding up the different drugs which were found on the defendant, the total quantity of cocaine narcotic is 10.31 grammes;  the total quantity of Ecstasy narcotic is 6.71 grammes.  The quantity of Ecstasy in this case is by no means insignificant, I do not believe it would be proper to simply disregard it or treat it as merging into the quantity of cocaine, the latter being the more serious of the two drugs, without a doubt.

14.Taking a global approach to sentence in this case, in other words, treating the various drugs set out in the two charges in the round, I have adopted a starting point of 5 years and 4 months’ imprisonment on both charges.  After affording the defendant the normal one-third discount that discounts the starting point to 43 months’ imprisonment.

15.However, there remains the question of the defendant’s claim under caution after his arrest that a significant portion of these drugs were for his own self-consumption.  The Court of Appeal has indicated in HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, that where this claim is made the matter should be addressed by the sentencing court since if the defendant’s claim is accepted, it may well make a difference to the proper sentence to be imposed.

16.The Court of Appeal also emphasised that given the dangers of the abuse of this avenue of mitigation; because it is a very easy claim for a defendant to make; the sentencing court should look at all the surrounding circumstances very carefully in order to decide whether or not to accept the defendant’s contention.

17.I am accepting, for present purposes, that the defendant is a drug addict.  Ms Lee explained that the previous conviction for simple possession of dangerous drugs in 2005 was in respect of Ecstasy and that appears to have been the start of the slippery slope for the defendant because he took that amount, so it is submitted, for fun on that occasion, with his friends.  Since then he has developed an addiction for the more serious drug, cocaine.

18.The defendant has submitted through Ms Lee, that approximately half of the total quantity of cocaine found in his possession was for his own consumption, and half was for sharing with his friends.  As I have noted the cocaine, which was contained in the motor vehicle, was contained in no fewer than 24 separate plastic bags.  The defendant has submitted, through Ms Lee, that the reason for that was simply that when he had purchased them the previous night, that is the way they were packaged.

19.The Ecstasy tablets were contained in two separate packets, one containing 15 tablets and one containing 40 tablets.  As for the small quantity of “Ice”, the defendant has submitted that what he believed he was purchasing was Ecstasy, that whoever sold it to him - I think it was suggested it was some friends - had included the small quantity of “Ice” for good measure, as it were.

20.I accept that explanation for present purposes.  It seems unlikely the defendant would have asked for such a small quantity of “Ice” to be included and in these circumstances I am going to ignore that small quantity of “Ice” for the purpose of considering the proper sentence to be imposed.

21.As for the fairly large quantity of cash found on the defendant, nearly $13,000, I have already related the defendant’s explanation for having that cash in his possession at the same time that he had all these drugs when he was intercepted by the police officers.

22.The Court of Appeal in Wong Suet Hau (above) also reminded sentencing courts that even where a significant proportion of the drugs were intended for a defendant’s own consumption, that the offence of simple possession of dangerous drugs itself carries a sentence of imprisonment and that it would be enhanced to reflect the latent risk factor that a significant quantity of the drugs might nevertheless end up in the hands of other users.  Indeed, in the present case the defendant has admitted that approximately half the quantity of cocaine was for sharing with friends.

23.As the Court of Appeal stated in Wong Suet Hau’s case, a friend who started off or perpetuated another’s abuse of drugs was as dangerous to the community as the commercial supplier of small quantities who would generally traffick in drugs with people who are already addicted.

24.In all the circumstances, I accept for present purposes that a significant portion of the drugs were intended for the defendant’s own consumption.  In my view it would be appropriate to further discount the sentence by a further 9 months’ imprisonment to reflect that fact which results in a final sentence of 34 months’ imprisonment, which is the sentence I impose on both charges, to run concurrently with each other.  So the total sentence the defendant faces on both charges is 34 months’ imprisonment.