HKSAR v. Tam Wing Hon

DCCC44/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 44 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.At about 9:20 am on 2 December 2009, police officers stopped the defendant for enquiry at Prat Avenue, Tsim Sha Tsui. He was searched. The Police found inside his left front trouser pocket a resealable plastic bag which contained 25 resealable plastic bags containing suspected dangerous drugs. The defendant also carried with him cash in the sum of $16,000.

3.The Government Chemist examined the plastic bags seized from the defendant and confirmed that they contained a total of 8.21 grammes of a solid containing 5.65 grammes of cocaine.

4.The defendant now admits that he possessed the cocaine for the purpose of unlawful trafficking.

Mitigation & Sentence

5.The defendant is now 35 years old. He has 2 conviction records which include 2 "trafficking" offences and 1 "possession" offence.

6.Mr. CHENG informed me that the defendant started working in a hair salon at the age of 15. He later opened his own hair salon, and subsequently switched to the karaoke and pub business. Mr. CHENG clarified that the defendant claimed to be unemployed because he did not want to disclose his workplace and get his bar into trouble. The defendant handles PR work in a bar located near the place of his arrest. He earns $20,000 per month and is also an investor of that bar.

7.Mr. CHENG submitted that the defendant intended to consume half of the drug seized and share the other half with a friend, who is a regular customer of his bar. He planned to give half of the drug to that friend the evening prior to his arrest, but he did not show up. On this basis, Mr. CHENG asked for some discount since the defendant only intended to share half of the drug seized with a friend. Mr. CHENG further submitted that half of the cocaine seized would last the defendant for about a week. Mr. CHENG accepts that according to the Prosecution's expert, the street value of the entire quantity of the cocaine found in this case is about $6,700. However, the defendant purchased "the lot" at $6,000.

8.Regarding the $16,000 cash found on the defendant, Mr. CHENG explained that the sum was mostly earnings of the bar made in the previous evening. The defendant was the last one to leave so he carried the cash with him.

9.The Court of Appeal in HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 has expressed clearly its disapproval of the so-called "social trafficking" :

"It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked."[1]

"The evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain."[2]

"In our opinion, while some of the 'social' or 'non-commercial' trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The 'friend' who starts off or perpetuates another's abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted."[3]

10.In my view, there is no such thing as "social trafficking". The criminality of buying drug for friends and then sharing it with them is just the same as acting as a courier or seller. Furthermore, there is no evidence as to how much the defendant intended for his friend and how much for his own use. The facts in the present case do not offer the slightest suggestion that the defendant is an individual who purchased a small quantity for recreational use and gave part of it to his partner to consume at a social occasion. I will sentence him on the basis of the entire quantity of cocaine seized.

11.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.

12.The sentencing tariff for trafficking in cocaine is the same as heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370). For up to 10 grammes, the sentence ranges from 2 to 5 years imprisonment.

13.In this case, 5.65 grammes of cocaine are involved. Arithmetically, the appropriate starting point should be about 3.5 to 4 years. Since the defendant is a repeated offender, I will adopt a higher starting point of 4 years to add a deterrent element. One-third discount is given for the guilty plea, reducing the sentence to 2 years and 8 months (32 months). Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is therefore 2 years and 8 months.