HKSAR v. Chau Tsz Ho

DCCC1366/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1366 OF 2010

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant was convicted upon his guilty plea of one charge of trafficking in a dangerous drug.

2.In sentencing, I take into account the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf by learned defence counsel.

3.The facts of the case are simple.  The defendant was stopped by police officers when he came out from a flat in a building. Nothing illegal was found on him.  With the keys found on him, entry was gained into the flat.  Two men were inside.  Upon search, a safe was found inside the wardrobe in the bedroom.  The defendant opened the safe with password.  Inside the safe, there were two metal boxes, one green and one silver.  In the green box, there were 15 plastic bags containing a total of 3.89 grammes of a solid containing 3.16 grammes of cocaine.  In the silver one, there were 35 plastic bags containing a total of 9.2 grammes of a solid containing 7.72 grammes of cocaine.

4.Under caution, the defendant admitted the safe and all the drug found therein belonged to him and had nothing to do with the other two persons.  In a subsequent interview, he said he had been living in the premises for about 10 days which he borrowed from his friend.  He bought the safe.  He had bought two small packets of cocaine from a friend Ah Ming for his own consumption.  Six days before the arrest, he bought 24 grammes of cocaine from Ah Ming at $17,000 and divided them in the premises into 80 small packets, each of about 0.3 gramme.  He intended to sell the cocaine for $500 per packet and keep some for his own consumption.

5.The defendant is 17 years of age.  He will turn 18 next month.  He is a first-time offender.  He and his two elder sisters were brought up by the mother.  The father passed away when the defendant was small.  His mother is mentally unstable and is under medical care upon knowing the wrongdoing of the defendant.  The defendant is still studying having completed Form 5 education.

6.It is sad to see once again a young person engaged in this very serious offence.  I am asked to consider reports before consideration of sentence.  I do not see the need to use public resources for this purpose.  I was told that the defendant is no longer drug dependent. 

7.The offence is far too serious to consider a community service order or training in detention centre.  There is nothing about the background of the defendant which counsel cannot provide.  I have considered asking for a training centre report but decided against it in the light of what was said in the sentencing precedents.

8.The dangerous drug the defendant trafficked in was cocaine.  The total quantity concerned was 10.88 grammes.  In the case of AG v Chang Chen Liu-sa [1995] 1 HKCLR 69, the Court of Appeal held that the sentencing guideline as suggested in R v Lau Tak Ming [1992] HKLR 370 was applicable to the cases of trafficking in cocaine.  The Court of Appeal indicated in R v Lau Tak Ming that in sentencing after trial where the quantity of the drug was between 10 grammes and 50 grammes, the sentence should range from 5 to 8 years’ imprisonment.

9.In all the circumstances, I am of the view that an immediate imprisonment term is warranted.

10.Despite the defendant is only 17 years of age, the court has consistently held that for the offence of trafficking in a dangerous drug, unless it is a case of extreme youth, youth generally is not a reason to reduce the sentence.  Deterrence is an important factor in sentencing for this nature of offence and the court should not only give regard to the rehabilitation need of the defendant. 

11.If any precedents are required, I am going to cite R v Lau Tak Ming [1992] HKLR 370, AG v Suen Yuen Ming [1989] 2 HKLR 403 and R v Yiu Kwong Shui, CACC377/1995. 

12.The defendant is not a person of extreme youth. There is nothing before me which cause me to think that this is such a special case which justifies exceptional sentencing consideration.

13.The defendant claimed that some of the cocaine found was for his own consumption.  Indeed learned counsel submitted that the major part of the dangerous drug in the defendant’s possession was for his own consumption. The prosecution expressly informed the court that they were not going to accept this assertion.  I indicated that the court is not going to accept the assertion merely upon the submission from counsel. 

14.Having advised his client and obtained the necessary instruction, learned counsel informed the court that the defendant is not going to testify on the issue nor call any evidence.

15.In all the circumstances, bearing in mind what the defendant said under caution, I found the primary purpose of possession for such quantity of cocaine was trafficking and most of the quantity in possession must be for that purpose.  In this regard I have considered cases such as HKSAR v Wong Suet Hau, CACC366/2000 and HKSAR v Chong Chee Ming, CACC315/2008. 

16.I will take into account that certain proportion of the cocaine was to be kept for the defendant’s own consumption, but the proportion would be low.  I find that he was obviously in the business of trafficking.  In any case the latent risk factor must not be ignored and, in my judgment, the risk is high in this case.

17.Having considered the whole circumstances including mitigation, I do not consider there exists sufficient reasons not to follow the tariff though a slightly lower starting point will be adopted to take into account the self-consumption factor. 

18.In Lau Tak Ming the Court of Appeal said that within the suggested bands the court should take into account the following factors: the profit which may reasonably be expected, the number of packets, the type of mixture containing the narcotics, the degree of involvement of the offender and his previous history of narcotic offences. 

19.In all the circumstances, I consider a starting point of 4½ years appropriate.  The defendant pleaded guilty, he is entitled to a one-third discount.  I am prepared to give the defendant a further discount of 3 months for his young age, that this is his first conviction and as a token to encourage him to rehabilitate. 

20.I also accept that the defendant is now remorseful and determined to turn over a new leaf.  I am satisfied that his family is going to support him.  I hope the defendant will realize that this is really his last chance and if he does not make a good endeavour to turn over a new leaf, his life will be ruined. 

21.Based on the matters aforesaid, I sentence the defendant to 33 months’ imprisonment.