HKSAR v. Chan Ho Tin

DCCC 501/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 501 OF 2013

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 47.56 grammes of a solid containing 35.13 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at about 7:30 p.m. on the 14 March this year the police directed a private car to stop outside the Fu Tai Shopping Centre in Tuen Mun.  The defendant, who was sitting in the passenger seat, looked suspicious and was asked to alight from the car.  Upon a search the police found from the left inner pocket of the defendant’s jacket 4 transparent plastic bags inside which was the cocaine. 

3.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Szeto.  I take into account the defendant’s young age and that he has no similar convictions for trafficking in dangerous drugs. 

4.The defendant does however have a conviction for possession of dangerous drugs for which he is now serving DATC.  The present offence was committed whilst he was on bail for that offence.  The commission of offences on bail is an aggravating feature of sentence.

5.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  InR v Lau Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years. 

6.Taking into account all the circumstances, including that the offence was committed whilst the defendant was on bail for the offence of possession of drugs, I am satisfied the proper starting point after trial for 35.13 grammes of cocaine is 7 years imprisonment. 

Own use

7.The defendant says that the smallest of the four bags was for his own use.  Taking into account the defendant has one previous conviction for possession of drugs for which he is now serving DATC I am prepared to accept that some of the drugs may have been for his own consumption.

8.In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

9.Taking into account the quantity of cocaine; the packaging in four almost equal quantities; the drugs were found when the defendant was a passenger in a car and not at home; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 9 months to one of 6 years and 3 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years and 2 months imprisonment.