HKSAR v. Chiang Yat Ming

HCCC186/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 186 OF 2012

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has pleaded guilty, after the voir dire, to two counts of trafficking in a dangerous drug, namely 35.8 grammes of a solid containing 23.67 grammes of cocaine, and in the 2nd count, namely 23.04 grammes of a solid and powder containing 17.4 grammes of cocaine.

The defendant, at the beginning of the trial, pleaded guilty to the 3rd count of possession of dangerous drugs, namely 4.06 grammes of a powder containing 1.86 grammes of ketamine and 0.09 grammes of a powder containing cocaine and ketamine.

The facts show that on the evening of 3 January this year, the defendant was stopped and searched in the lobby of the Siu Hing Building in Temple Street, and the drugs the subject matter of Count 1 were seized from his underpants. Under caution, the defendant admitted he was delivering the drugs for a reward of HK$1,000.

The defendant was taken to his premises on the 11th floor of the building, and upon a search of his premises, the drugs which are the subject matter of Counts 2 and 3 were discovered. Also seized in the room were an electronic scale and a number of resealable plastic bags. The defendant admitted that all these belonged to him.

The drugs in both the 1st and 2nd counts are cocaine, and the Court of Appeal has said that the sentencing guideline laid down for heroin in the case of Lau Tak Ming is applicable for sentencing for cocaine. In the case of Lau Tak Ming it was recommended that for trafficking of between 10 to 50 grammes, a sentence of 5 to 8 years is reasonable.

The defendant is aged 36 and has a poor record. He has had seven previous convictions, five of which are drug related. He graduated from appearing in a Magistrates’ Court to appearing in the District Court for his last offence, where he was sentenced for trafficking in dangerous drugs to 3 years and 4 months’ imprisonment.

The only mitigating factor that I see is his timely plea in relation to Count 3 for possession and his pleas after the voir dire, before the trial proper, to the remaining charges.

Mr Yuen has tried his best, in mitigating, on behalf of the defendant, to try to convince this court to give the full one‑third discount to the defendant in Counts 1 and 2 despite his late plea.

I see no reason to make an exception in his case. In relation to Counts 1 and 2, the total amount of cocaine is 41.07 grammes, and I therefore would consider that a starting point of 7½ years would be appropriate.

In the case of HKSAR v Leung Cho Yi [2009] HKCU 625, it was stated that a discount of 20 per cent was appropriate for a plea after a voir dire. So therefore, adopting a discount of 20 per cent, the sentence of 7½ years is reduced to one of 6 years.

The defendant is therefore sentenced, in relation to Count 1, to 6 years’ imprisonment. In relation to Count 2, also to 6 years’ imprisonment, but to be concurrent.

In relation to the 3rd count of possession, admittedly it is a very small amount of cocaine. So in respect of the possession for his own consumption, I consider an appropriate sentence for Count 3 to be one of 18 months’ imprisonment. Because the defendant had pleaded guilty at the outset, he is entitled to one-third discount, and so he is sentenced to 12 months’ imprisonment for the 3rd count, and I make it concurrent to the sentences in Counts 1 and 2.

The defendant will go to prison for 6 years.