HKSAR v. Chau Siu Lun, Warren
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DCCC 190/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 190 OF 2013 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charges and facts 1.The defendant pleads guilty to 2 charges of trafficking in dangerous drugs. In the late evening of 11 October 2012, the police were conducting an anti-dangerous-drug operation when the defendant came out from the building at 263 To Kwa Wan Road, Kowloon. When the police revealed identity and tried to intercept him, he returned to the building and walked up the stairs. On the 1st Floor stairs, he was intercepted and searched. In his underpants were found:
2.Shortly afterwards, they entered his residence located at Room C, 2nd Floor of the building using his keys. In a desk drawer in his bedroom were found:
3.After arrest and caution, he said the drugs were for his own consumption but he might sell some to his friends at a price to be fixed. He paid $3,200 per month as the rent. Personal background and mitigation 4.He is 43 years of age. He was a cleaner at the time of the arrest. His income was $8,500 per month. He had various criminal records but only 2 related to drugs, ie simple possession in 1996 and 2011. The last had put him in probation which he breached and ended up in the DATC. He is still in DATC currently. He is and was a drug addict at all material times. 5.His counsel informs me that he has instructions to request for a discount for the 5-month delay from the arrest to the first appearance in court. I do not see any merit in such request. 6.His counsel informs me that the drugs found in his bedroom were primarily for his own consumption though he might sell them. Sentencing considerations 7.His counsel refers to the case of HKSAR v. Yip Wai Yin [2004] 3 HKC 367 for an illustration of the “individual”approach versus the “combined” approach in sentencing cocktail drugs. The latter approach is often, though not invariably regarded as the correct approach. It involves the calculaton of the applicable sentence for the more or most serious drug (in terms of potency), then to take into account significant quantities of other (less serious) drugs. 8.The prosecutor refers to the case of HKSAR v. Chow Chun Sang CACC 135/2011 for the observations by the Court of Appeal that where all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. 9.For trafficking in below 10 g of Ice (here 5.73 g in total), the sentence is 3 – 7 years[1]. For below 10 g of ketamine (here 8.99 g), it is 2 – 4 years[2]. For below 10 g of cocaine (here 0.23 g), it is 2 – 5 years[3]. Sentencing this defendant 10.For the 1st Charge, I take a starting point of 4 ½ years. It was all for Ice. 11.For the 2nd Charge, I take a starting point of 4 ½ years as the Ice here is the more serious drug, to be increased by 12 months for the ketamine and the cocaine. The starting point is 5 ½ years (ie 66 months). I reduce it by 12 months (ie about 18%) as a part of the drugs in his bedroom was intended for his own consumption. The resulting starting point to reflect this fact of own consumption is 4 ½ years. 12.From the resulting 54 months, I give him the one-third discount for his pleas of guilty, the sentence is 3 years for each charge. As the drugs under both counts are of the same transaction, the sentences shall be concurrent.
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