HKSAR v. Law Wa Pan

DCCC 377/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 377 OF 2011

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in dangerous drugs.  On the evening of 10 February 2011, he was intercepted at a staircase by the police shortly after coming out of a residential unit in Tsim Sha Tsui.  His shoulder bag contained 1 bag of crystalline methamphetamine (“ICE”) and 1 bag containing 44 bags of solid cocaine.  Under caution he admitted helping to deliver the ICE and the cocaine for a reward of $1,000 to be paid afterwards.  

2.The government chemist certified that the crystalline weighed 5.66 g with 5.52 g of narcotic ICE whereas the solid weighed 9.92 g with 5.88 g of narcotic cocaine. 

3.The estimated street value was over $3,600 for the ICE and over $10,000 for the cocaine. 

Personal background and mitigation put forward

4.The Defendant is 27 years of age.  He was educated up to F. 1.  He was unemployed at the time of arrest.  He has a number of previous convictions but none for drug trafficking.  He has a daughter, aged 6 months, begotten by his girlfriend, who lives on public assistance.  He committed the present offence out of eagerness to earn money.   

Sentencing principles

Sentencing on cocktail drugs

5.In HKSAR v Cheung Kwok Leung CACC 539/2002, Beeson J, who delivered the judgment of the Court of Appeal, outlined the proper approach as follows:

“38. We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39. The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

40. Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.”

6.Such approach has been widely adopted in subsequent cases (HKSAR v Yip Wai Yin CACC 80/2003; HKSAR v Cheung Kwok Fai CACC 157/2008).  

Sentencing guidelines for ICE trafficking

7.According to Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, a narcotic quantity of up to 10 g shall attract 3 – 7 years’ imprisonment.

Sentencing guidelines for cocaine trafficking

8.Attorney General v Rojas [1994] 1 HKC 342 stated that the sentencing guidelines for heroin are applicable to cocaine.  According to R v Lau Tak-ming [1990] 2 HKLR 370, a narcotic quantity of up to 10 g shall attract 2 – 5 years’ imprisonment. 

Sentencing present Defendant

9.The Defendant was a courier for reward.  ICE can be regarded as slightly more potent and harmful than cocaine but their respective quantities are about equal.  It is difficult, and I suspect not desirable, to apply a strict mathematical approach here.  In the light of such overall circumstances, I take a starting point of 4½ years.  I reduce it by one-third because of the plea of guilty. There are no other mitigating factors.  The sentence is 3 years.