HKSAR v. Chan Yu Ming

DCCC 284/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 284 OF 2013

____________

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and a negligible amount of ketamine.

Summary of Facts

2.About 3:10 a.m. on 14 January 2013, the defendant was driving private car (RN 492).  He was stopped at a police road block set up at Castle Peak Road (near Lamppost No.W2360) in Kwai Chung.

3.The defendant and his car were searched. The Police found (i) a transparent re-sealable plastic bag (E1; later found to contain 0.27 gramme of a solid containing 0.23 gramme of cocaine) in the defendant's right front trouser pocket; (ii) a transparent re-sealable plastic bag (E2; later found to contain 23 plastic bags containing a total of 5.59 grammes of a solid containing 4.61 grammes of cocaine) in the compartment on the left side of the driver's seat; and (iii) a HK$100 banknote folded into a packet (E3; later found to contain 0.04 gramme of a powder containing cocaine) and a paper packet (E4; later found to contain 0.13 gramme of a powder containing 0.10 gramme of ketamine) in the small compartment below the steering wheel.

4.In addition, cash in the sum of $6,924 and 3 mobile phones were found on the defendant.

5.Under caution, the defendant admitted that E1 was cocaine.  He had just purchased E1 and other drugs at $5,000 in Mongkok at 1:00 a.m. and was on his way home.  Half the drugs were for his own consumption and the other half he intended to share with friends.

6.In his Record of Interview, the defendant repeated that he had just purchased the cocaine and ketamine at 1:00 am in Mongkok.  He intended to consume half of the drugs and treat his friends with the rest.  The $6,000 odd cash was his wages as a transportation worker.

Mitigation & Sentence

7.The defendant is now 25, single and resides with his mother and younger brother in a public housing unit.  He has 3 conviction records, which include a "trafficking" offence and a "simple possession" offence.  The defendant quitted school in 2000 after completing F.2.  Thereafter, he took up various jobs such as hair salon apprentice, garage worker and recently, delivery worker.  There is a letter from his employer stating that he earns $12,000 per month.

8.Defence counsel Mr. CHOY informed this court that the defendant's parents have been divorced for a long time.  His mother became the main financial support of the family since the father was never around.  Mr. CHOY submitted that the defendant made full and frank admissions upon arrest.  He maintains that half of the drugs were for his own consumption and the other half, for treating his friends.  Mr. CHOY invited this court to consider the Court of Appeal's decision in HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69.

9.In relation to the meaning of the phrase "treating his friends", prosecuting counsel Mr. POON informed this court that the exact words used by the defendant were "請啲friend食". Both counsel agreed that "treating" （請）in this context denotes free of charge.

10.There is evidence which suggests that the defendant earns $12,000 per month.  The defendant claimed that he purchased the drugs at $5,000.  Assuming that he had told the truth about the price of the drugs, it means that the defendant was willing to spend about 21% of his monthly salary on treating his friends to drugs.  I am skeptical as to the defendant's over generosity.  On this issue, Mr. POON submitted that he has no instructions to rebut or accept the defendant's claim as to the respective quantities for self-consumption and trafficking.

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  For the purpose of sentencing, I will ignore the 0.04 gramme of powder containing cocaine and the 0.10 gramme of ketamine.

12.In the present case, the defendant trafficked in 4.84 grammes of cocaine; the appropriate starting point is 3.5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 28 months.  In view of the defendant's claim that half of the amount was for self-consumption, I am prepared to grant him a nominal discount of 2 months. Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence the defendant to 26 months' imprisonment.