HKSAR v. Cheung Ka Fai

DCCC443/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.The Defendant pleaded guilty to one charge of “trafficking in a dangerous drug”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.Briefly, the facts were that during a search conducted by the police, a plastic bag containing the drug in question, that is, 11.85 grammes of a solid containing 9.48 grammes of cocaine, was found inside the right front pocket of the Defendant’s jeans. The estimated street value of the drug was about HK$15,000.

3.Both at the scene and during a subsequent video-recorded interview, the Defendant admitted under caution that he was delivering the cocaine for a person named “Ah Lok” and he would be given a reward of HK$3,000 in return.

Mitigation

4.The Defendant is now 24 years of age. He was educated up to Form 2 level. After quitting school, he has worked as a hair-stylist and a transportation worker. However, since August last year, he had been unemployed.

5.Although the Defendant is not yet married, he has a 3-year old son with his ex-girlfriend. After his arrest, the Defendant’s son is being looked after by his parents. In mitigation, it was said that the Defendant committed the present offence as he had to earn money to support his son.

6.The Defendant has been before the court on 5 previous occasions with 7 convictions. He committed the offence of “burglary” when he was 18 years of age. No doubt, owing to his age, he was given a lenient sentence on that occasion and was put on probation for 18 months. However, the Defendant did not seem to have treasured the opportunity and he committed further offences of “possession of dangerous drugs”, “robbery” and “claiming to be a member of a triad society” in the years which followed. At present, the Defendant is serving a term of 6 months imposed in April this year for the offence of “possession of dangerous drugs”.

Sentencing Considerations

7.In AG v Pedro Nel Rojas [1994] 1 HKC 342, it was held that the guidelines for heroin trafficking in R v Lau Tak Ming [1990] 2 HKLR 370 were also applicable to the sentencing of cocaine trafficking. In the case of Lau Tak Ming, trafficking of up to 10 grammes of heroin will attract a term of imprisonment of between 2 to 5 years.

8.For the 9.48 grammes of cocaine involved in this case, I consider a starting point of 4½ years to be appropriate.

The Sentence Imposed

9.The Defendant pleaded guilty to the charge and he will get a one-third reduction for his plea. Other than that, I do not see any other mitigating factors which would warrant a further reduction in sentence. Needless to say, if the Defendant had any financial difficulties, he should have sought assistance through legitimate means and he should not have resorted to committing the present offence.

10.The present sentence of 4½ years reduced by one-third is 3 years’ imprisonment. Therefore, the Defendant is going to serve a term of 3 years for this charge.

The Totality Principle

11.As the Defendant is already serving a term of 6 months starting from April this year, I consider that the correct totality could be achieved by ordering that 2 months of the 3-year term imposed on this occasion are to run concurrently with his existing term whereas the rest is to run consecutively and I so order.