HKSAR v. Chau Ka Wing

DCCC 547/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.547 OF 2012

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

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

Reasons for Sentence

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

1.The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.The defendant was intercepted by Police officers during an anti dangerous drugs operation inside a building in the Tai Po area. 1 plastic bag containing 35 packets of dangerous drugs were found in the left trousers pocket of the defendant upon search. The defendant was arrested and admitted under caution that the plastic bag contained heroin and that he was delivering it to someone.

3.The defendant was then brought back to his residence in the building. Upon search, 1 plastic bag containing 66 packets of dangerous drugs were found on a bed. The defendant was arrested for this batch of dangerous drugs and admitted under caution that the dangerous drugs were heroin and that they belonged to him. The defendant confirmed that he rented the premises and was the only person residing there and the only person with the key to the premises.

4.In the subsequent video recorded interview, the defendant stated that he was given the 101 packets of dangerous drugs by an ‘Ah Wai’ he met in a game arcade. He instructed the defendant to keep them at the premises. Ah Wai instructed the defendant to leave 35 packets of the dangerous drugs at a flower bed in a park the following few days, in return, the defendant would be paid about $200 to $300.

Previous Convictions

5.The defendant has 3 previous convictions. He was last convicted on 16^th November 2011 for trafficking in dangerous drugs at the Fanling Magistracy and was sentenced to 2 months’ imprisonment. He was last discharged from jail custody in January 2012.

Mitigation

6.The defendant is 26 years old. He was born in Hong Kong and educated here up to Form 3 level. The defendant worked as a construction worker after graduation.

7.The defendant is married, his wife lives in mainland China, aged 31. They do not have any children. The defendant’s parents are divorced and the defendant lives alone. The defendant was working as a transportation worker on a casual basis, earning about $6,000 per month.

8.It was submitted in mitigation that the applicable sentencing guidelines is found in R v Lau Tak Ming, that the defendant is of relatively young age, that there was just one previous similar conviction and that the street value of the drugs involved in the 2 charges are only $4,000 and $8,000. It was also submitted that because the charges took place on the same day, at around the same time and in the same premises, the sentences should be made at least partly concurrent.

Sentence

Sentencing tariff

9.The applicable guidelines for trafficking in heroin are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370. Sentencing for trafficking in heroin for quantities up to 10g is 2 to 5 years’ imprisonment, and between 10g and 50g that of 5 to 8 years’ imprisonment.

10.Having heard from Mr. Cheung in mitigation, I find that there are no special mitigating factors that would allow me to depart from the sentencing tariff. I disagree with the submission that the defendant is of young age. 25 years old at the time of the offence is not an age that the court would take into account as a mitigating factor in drug trafficking cases.

11.I find the fact that the defendant had chosen to re-offend within just a few months from his release from prison a factor to be taken into consideration.

12.Based on the narcotics involved, in relation to charge 1, I will adopt a starting point of 36 months’ imprisonment. In relation to charge 2, I will adopt a starting point of 51 months’ imprisonment. Reducing the sentences by one third in recognition of the defendant’s plea of guilty, the sentences after discount are 24 and 34 months’ imprisonment respectively.

Totality

13.Had the total amount of narcotics found in possession of the defendant been 11.54g, being the sum of the 2 charges, a proper starting point would be no higher than around 62 months’ imprisonment, that is, without taking into consideration any mitigating or aggravating factors.

14.Applying the principle of totality, and already taking into consideration that this is the second trafficking in dangerous drugs conviction for the defendant, I will order that 20 months of the sentence of charge 2 to be served consecutively to the sentence of charge 1, bringing the final sentence to that of 44 months’ imprisonment.