HKSAR v. Yu Fat Chiu

DCCC768/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 768 OF 2009

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Before: Deputy District Judge Casewell

Date:   2 December 2009 at 9.30 am

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Reasons for Sentence

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1.The defendant has in fact been convicted on his own plea of the offence of trafficking in a dangerous drug and convicted after trial of an offence of obstructing a police officer. The convictions arise out of an arrest made by police of the defendant and another lady in a car on 6 June 2009.

2.At that time, the drugs which constitute the offence in Charge 1 were found in the lady’s handbag. This defendant was prepared to say that the drugs were in fact his. He was prepared to admit that he was the person who was trafficking in those drugs on the basis that he bought the drugs for his friends and they were to pool both the expenditure and the consumption of the drug. The drugs were contained in separate bags but amounted to 14.17 grammes of a solid which contained 8.59 grammes of narcotic cocaine.

3.There was a trial of the other defendant, and this defendant gave evidence during that trial. And I accepted the defendant’s admission that he was the person who was in fact the possessor and user of the drug. I believe I observed in acquitting the 1st defendant that, in fact, most of the evidence of the case was against the 1st defendant rather than this defendant. Now, as his counsel said, this defendant did the decent thing and took responsibility for this matter and ensured the other lady was not wrongly convicted.

4.Now, as far as the facts of the offence are concerned, I will be sentencing him on the basis that he was in possession of the 8.59 grammes of cocaine for the purpose of trafficking in them, and that has been established in the evidence and admitted by him. And also in respect of the obstruction charge, the defendant tried to seize the bag of drugs off a police officer in a rather ineffectual way. It appears to be a rather foolish thing to do and really is part and parcel of the first offence.

5.The defendant is a young man of clear record. He is only 22 years old. And because of the rather curious circumstances in which he came to be convicted in this case, I have obtained a background report upon him, and the report is quite detailed. It shows the defendant came from the mainland. He came to Hong Kong when he was about 9 years old, and times were quite hard for the family when they arrived. He also has a difficult relationship with his father. The defendant left school very early and has been in employment since then and worked in a stable way until about May of 2009.

6.The defendant, has as the expression is, has turned wayward since then and has become a drug abuser of a range of drugs. The defendant considers himself to be somebody who is addicted. He would wish to free himself of that. He also has an aspiration to work as a sushi chef in a Japanese restaurant. He has frankly accepted his responsibility and frankly accepted the fact that he will be in prison obviously for some time in relation to these matters.

7.There is a clear tariff for these offences, and that is that up to 10 grammes of a narcotic can lead to a sentence between 2 to 5 years’ imprisonment, a starting point of sentence of 2 to 5 years’ imprisonment. The starting point is not rigid. But in setting it, I bear in mind the defendant’s reasons for possession of the drug, that some of the drugs would be for his own consumption, that he is involved in social trafficking, although that should not affect the starting point for sentence much, that he has shown considerable remorse and that he has backed that remorse by the action of giving evidence to assist an innocent party.

8.Taking all those factors into consideration, I am going to take a starting point for sentence of 45 months’ imprisonment. I will reduce that to 30 months’ imprisonment for the defendant’s plea of guilty. On the 2nd charge, I will impose a sentence of two weeks’ imprisonment, but it can run concurrently with the existing sentence. So, the overall sentence, the total sentence, will be one of 30 months’ imprisonment.