HKSAR v. Chow Kuok Fai

DCCC248/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 248 OF 2010

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Reasons for Sentence

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1.The defendant, Mr Chow Kuok-fai, pleads guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The particulars of offence are that the defendant on the 6th day of January 2010, outside Kwun Tong Lutheran School, No. 2 Horse Shoe Lane, Sau Mau Ping, Kowloon in Hong Kong unlawfully trafficked in a dangerous drug, namely, 47.84 grammes of a solid containing 33.88 grammes of cocaine.

Facts admitted

3.In the late evening on 6 January 2010, the defendant was stopped and searched by a group of police officers at the location set out in the charge. The police found two transparent resealable plastic bags inside the defendant’s left front trousers pocket containing the dangerous drugs in question which is 47.84 grammes of a solid containing 33.88 grammes of cocaine. The police also found cash of $2,348 and five mobile phones on the defendant.

4.The defendant admitted under caution that he was helping a person by the name of Ah Chi to deliver the cocaine to someone. At a subsequent video-recorded interview, the defendant claimed that one of the mobile phones was used for communication with his family, two of them were used for work, one was his own mobile phone and the other one was to be given to his friend.

5.The defendant further said that the cash found on him was his earnings from casual works.

Criminal record

6.The defendant has four previous convictions, the last one being an offence of possession of dangerous drugs for which he was fined $3,000 on 1 February 2007.

Mitigation

7.The defendant is aged 26, single and was born in Macau. He came to Hong Kong when he was aged 10 and he studied in Hong Kong up to Form 5. He is living with his parents and a brother and is the main breadwinner of the family. He worked as a construction site worker up to the time of his arrest, earning about $10,000 to $13,000 a month.

8.His mother is of poor health and is suffering from cancer, for which the defendant had to take her for medical treatment in Zhongshan, China from time to time. The brother of the defendant, due to health problem, cannot undertake full-time job and works part-time in Disneyland. The defendant was under tremendous financial pressure, and in order not to disrupt the medical treatment of the mother, the defendant committed the present offence for quick money.

9.Counsel representing the defendant submitted to court letters of mitigation of the defendant and his parents and employer.

10.The defendant expresses remorsefulness in the letter. He feels shameful of putting the family in an even more difficult financial situation because of the present offence. He asks for leniency from the court. The parents and the employer express a good opinion of the defendant, saying that he is a good‑natured and hardworking person and is a filial son. They ask the court to be lenient to the defendant. The employer says that he is willing to employ the defendant again.

11.Counsel for the defence asks the court to adopt a low starting point and give the defendant credit for his guilty plea.

Sentence

12.The Court of Appeal has laid down sentencing guidelines for the offence of trafficking in cocaine. The tariffs are the same as applied to heroin. According to R v Lau Tak Ming [1990] HKLR 370, if the quantity of the narcotics is 10 to 50 grammes, the normal starting point is 5 to 8 years’ imprisonment. The amount of cocaine in the present case is 33.88 grammes. According to these sentencing guidelines, the normal starting point should be one of 6 years 9 months’ imprisonment.

13.The defendant committed the offence because of financial difficulty. This, of course, can never constitute a valid ground for mitigation. After considering the whole circumstances, the court is of the view that there are no grounds to justify departure from the sentencing guidelines. The court, therefore, adopts 6 years 9 months’ imprisonment as the starting point. After giving credit to the defendant for his guilty plea, the court sentences him to 4 years 6 months’ imprisonment.