HKSAR v. Au Chin Kong

DCCC 553/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 553 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.Shortly after midnight on 1 March 2013, the defendant parked his private car (RW 6697) outside No.8 Hanoi Road, Tsim Sha Tsui.  He then alighted from the car and stood next to the driver seat, leaving the driver seat door open.

3.PC 7152 (PW1) and his colleagues went up to the defendant to make enquiries.  PW1 also searched RW 6697 in the defendant's presence.  He found the following items inside the car :-

(i) on the floor mat in the front part of the driver seat, 2 plastic bags wrapped in a piece of tissue paper were found, which contained a total of 0.44 gramme of a solid containing 0.37 gramme of cocaine; and

(ii) in the storage compartment between the driver seat and the front passenger seat, 1 plastic bag containing 45 small plastic bags were found, which contained a total of 10.27 grammes of a solid containing 8.01grammes of cocaine.

4.The defendant was arrested but remained silent under caution.  At that time, he was the registered owner of RW 6697. He now admits that he possessed the cocaine found in his car for the purpose of unlawful trafficking.

Mitigation & Sentence

5.The defendant is now 24, single and a casual delivery worker.  He has a clear record.  Defence counsel Ms. MA informed me that the defendant's parents had a divorce when he was young.  He was looked after by his maternal grandmother and aunt.

6.Ms. MA submitted that in mid-2012, the defendant broke up with his girlfriend.  As a result, he began to take drugs to cure his bad mood and later became addicted.  Since he had a job and steady income, the defendant could manage financially.  In February 2013, the defendant had a traffic accident.  He agreed to pay the other driver $20,000 as repair expenses.  When pressed for payment, he foolishly resorted to drug trafficking.  For the present offence, the defendant's reward was $1,500 plus 2 packets of cocaine.  Ms. MA pointed out that the 2 packets wrapped in a piece of tissue paper were for the defendant's consumption, whereas the 45 packets were for trafficking.

7.Mitigation letters and other supporting documents were placed before me; their contents are duly noted. 

8.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  Furthermore, a clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

9.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 of cocaine, the sentence ranges from 2 to 5 years' imprisonment.

10.For the purpose of sentencing, I accept that the 2 packets found in the front of the driver seat were for the defendant's consumption.  In other words, he trafficked in 8.01 grammes instead of 8.38 grammes of cocaine.  For that amount, the appropriate starting point is 4.5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 3 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence the defendant to 3 years' imprisonment.