CRIMINAL CASE NO. 1 OF 2010
COURT: At about 7.30 pm on 5 June 2009, police officers saw two men emerge from Flat 105A on the 15th Floor of Tak Yau Mansion which is located at 103-107 Lai Chi Kok Road in Mongkok. Both men were intercepted by the police. These men were Chan Chi-keung, the 1st defendant and Yu Cheuk-wai, the 2nd defendant.
At the scene both men were searched. In the 1st defendant’s underwear the police found what they suspected to be dangerous drugs wrapped in a paper parcel. The 1st defendant was arrested on suspicion of trafficking in dangerous drugs. In response to the police officer’s questions, he told them that the package contained cocaine which he was about to deliver for a reward of $200.
In the meantime the 2nd defendant had been taken by the police officers into the flat from which both of the accused had earlier emerged. Inside a shoulder bag, then being carried by the 2nd defendant, the police found what they suspected to be dangerous drugs. The police also observed that the flat contained a large quantity of drug packaging paraphernalia.
The drugs found in the 1st defendant’s possession were determined, upon examination by the Government chemist, to be 24.85 grammes of a solid containing 18.01 grammes of cocaine. The drugs found in the 2nd defendant’s possession were determined, upon examination by the Government chemist, to be 23.75 grammes of a solid containing 15.72 grammes of cocaine.
In the course of searching the flat police officers found another package of suspected dangerous drugs in the living room. That package was likewise analysed by the Government Chemist and was determined to be 6.88 grammes of a solid containing 4.91 grammes of cocaine.
Both defendants were jointly charged with trafficking in the cocaine each of them was carrying when they were apprehended, the total amount being 48.6 grammes of a solid containing 33.73 grammes of cocaine which is the particulars in Count 1.
Both defendants were jointly charged with trafficking in the one packet of cocaine found in the flat when the police searched it, the amount being 6.88 grammes of a solid containing 4.91 grammes of cocaine, they being the particulars in Count 2.
Today, before me, both defendants have pleaded guilty to Counts 1 and 2. An additional charge they faced on the indictment of manufacturing dangerous drugs, in each case, they pleaded not guilty to. Subsequent to the admission of the Summary of Facts in respect of Counts 1 and 2, the prosecutor, properly in my opinion, have requested that Count 3 remain on the court file and not be proceeded with without the leave of the court. Having convicted both of the defendants of Counts 1 and 2 I made that order.
When interviewed by the police, both defendants admitted that they were trafficking in cocaine. Both of them had keys to the flat where the packaging paraphernalia and the packet of drugs referable to Count 2 was found.
The total quantity of cocaine for the purposes of sentencing is, therefore, 38.64 grammes and, on the basis of the relevant Court of Appeal authorities for sentencing, that is, Attorney General v Pedro Del Rojas, which is reported at [1994] of 1 Hong Kong Cases 342 and R v Lau Tak-ming, which is reported in [1990] 2 Hong Kong Law Reports, page 370, the appropriate starting point for sentence, leaving aside for the moment that there are two counts, would, in the normal course of events, be 7 years’ imprisonment.
In respect of each of the defendants, there has been mitigation advanced on their behalf. In the case of the 1st defendant, I was told that he is 34 years of age and that his circumstances, prior to the commission of this offence, do not indicate that he had any significant criminal involvement. In 2007 he was self-employed as a driver. He got into financial difficulties, and as is often the case with those who are convicted of trafficking in dangerous drugs, resorted to that course to overcome those financial difficulties.
I am told on this behalf that he did not realise the seriousness of the offence that he had committed. On his behalf, three letters was placed before me by him, his girlfriend and his elder sister asking that the court consider a lenient sentence given all of the circumstances.
On behalf of the 2nd defendant, Mr Polson has told me that he was, in December 2007, married. His wife became pregnant; there were difficulties with that pregnancy which resulted in excessive financial burden. As a consequence of this and his foolishness, he became involved in trafficking in cocaine. One other matter I was told was that subsequent to his arrest, his wife gave birth to a child, and that by reason of his detention, he has had no physical contact with that child since.
In sentencing for trafficking in dangerous drugs, the Court of Appeal has, on a number of occasions, indicated that beyond a plea of guilty, it is very unlikely that the personal circumstances of the drug trafficker would permit a sentencer to give to him any greater reduction from this appropriate starting point. Nothing in the circumstances of each of these defendants is remarkable to permit me to do that. They are, of course, entitled to a full one-third discount for their pleas of guilty.
As I have earlier indicated, the appropriate course to determine the overall starting point is to combine the two amounts of the drugs in Counts 1 and 2. This I have done which indicates, on the basis of the authorities, that a starting point for sentence after trial of 7 years’ imprisonment would be appropriate.
Looking at the individual counts - as the defendants must be sentenced on each of the counts - the appropriate starting point in Count 1 would be a term of 6 years and 8 months’ imprisonment. And for Count 2, a period of 3 years and 6 months’ imprisonment. Allowing a discount in each case of a full one-third that would result, ordinarily in a sentence of 54 months’ imprisonment on Count 1 and 14 months’ imprisonment on Count 2.
However, as I have indicated, the appropriate overall starting point for sentence, combining the weights of the drugs in Counts 1 and 2, is a sentence of 7 years discounted by a full one-third to 4 years and 8 months’ imprisonment.
To give effect to that the defendants are sentenced as follows: each of the defendants, on Count 1 is sentenced to 4 years and 6 months’ imprisonment. On Count 2, they are each sentenced to 1 year and 2 months’ imprisonment. I will order that 2 months of the sentence on Count 2, be consecutive to the sentence on Count 1. This will make a total sentence of 56 months’ imprisonment or 4 years and 8 months.
(Discussion with counsel regarding calculations)
In fact the correction must be as follows that the appropriate sentence on Count 2 is 2 years and 4 months’ imprisonment and that 2 months of that will be consecutive to the sentence on Count 1. That is correct. So for the avoidance of doubt, gentlemen, you must ignore the earlier remarks about Count 2. The correct figures in respect of each of them are 4 years 6 months, 2 years 4 months and 2 consecutive. And the overall final figure is 4 years and 8 months.