HKSAR v. Chan Sze Man

DCCC 923/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 923 OF 2013

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REASONS FOR SENTENCE

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1.The defendant appeared before me this morning and pleaded guilty to three charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.The first offence happened on 16 July 2013, whereas the second and the third offence took place a week later on 23 July 2013.  The three offences all happened in Sheung Shui and Fanling area.

3.It involved an actual trafficking activities whereas the defendant was found selling packets of cocaine to a police officer who was deployed posing as a purchaser of cocaine.

4.The first charge involved 0.27 grammes of cocaine and the second charge involved 0.22 grammes of cocaine and, finally, the third charge involved 3.18 grammes of cocaine.  The total quantity of the cocaine involved in these three charges was therefore 3.67 grammes of cocaine.

The facts

5.According to the amended summary of facts which the defendant had admitted, the police conducted an anti-dangerous drugs operation in July this year in which a police officer was deployed to pose as a purchaser of dangerous drugs.  During the operation, the police officer had to contact a seller of cocaine whose nickname was Ah Mun at a mobile phone numbered 66417500.

6.In the first charge, the police contacted Ah Mun by the mobile phone number as mentioned.  As a result, the defendant turned up and handed over a plastic bag containing 0.27 grammes of cocaine to the police officer.  The police officer then gave the defendant HK$400.

7.At about a week later on 22 July 2013, the same police officer called the defendant again and requested to purchase cocaine.  The defendant told the police officer to meet her at the area near Fanling.

8.Subsequently the defendant turned up and met up the police officer. This time, the police officer used $400, which was marked money, to purchase the cocaine from the defendant.

9.After the transaction was completed, another police officer who was laying in ambush then approached the defendant and intercepted her for enquiry.

10.At the time when the defendant was intercepted, she was still holding the marked money in her hands.

11.Upon a search of the defendant, a cigarette box containing 15 plastic bags containing a total of 3.18 grammes of cocaine were found.  Also, cash of $2,286 and two mobile phones were found inside the defendant’s handbag and she was then arrested and cautioned.

12.The street value of the cocaine was about $4,579.

13.In a subsequent investigation and interview, the defendant fully cooperated and admitted that she was unemployed since April this year and as she could not find a job and was in need of money, starting in July, a friend of hers named Andy then offered her a job to sell the cocaine to customers and she was promised to be paid $500 a day.  One of the mobile phones which was found was used for answering calls from the buyers of the cocaine and each time, she sold a packet of cocaine at HK$400 to the police officer.  The cocaine was passed to her by Andy and the cocaine was already packed into packages when she received the drugs.

Defendant’s criminal records and background

14.The defendant is now 19 years of age. 

15.In the past, she had been brought to court in two occasions in relation to three charges, all related to dangerous drugs.  For the first offence of “possession of dangerous drugs”, she was sentenced to the DATC in the Fanling Magistracy in 2011 and the last conviction was in February 2012 for a similar offence of “trafficking in dangerous drugs”, and she was sentenced to 16 months’ imprisonment.  She was discharged from prison in December 2012 after serving the sentence.

16.Defendant is still single.  At the time of the offence, she lived with a female friend in Sheung Shui.  She has parents and an elder brother who live in Fanling but the parents were separated.

17.In mitigation, her solicitor, Mr Tao, has submitted on her behalf a letter of mitigation written by the defendant herself.  I am not going to repeat the content of the letter, suffice it to say that the defendant was filled with shame and remorse.  Mr Tao asked the court to give the defendant one last chance to sentence her leniently so that she could go back to her parents and she also promised in her letter to plan her life again to become a “useful person” in society.

18.Mr Tao prayed in aid the fact that the defendant was fully cooperative with the police right after the arrest and also, of course, the fact that she pleaded guilty to all the three charges, therefore saving the court’s time.

19.Furthermore, Mr Tao also urged the court to take into account that although there are three separate charges, these offences were all taking place at the same incident or they were same series of incidents. Whilst the first offence and the last two offences were separated by about one week’s time, Mr Tao submitted that they were still closely connected in the time and facts and, therefore, urged the court to consider passing wholly concurrent sentences or at least partly concurrent sentences.

Sentencing considerations

20.The present case involved trafficking of cocaine.  Trafficking of dangerous drugs is of course a very serious offence and anybody who was involved in trafficking of dangerous drugs will expect no mercy from the court.

21.The Court of Appeal had already held in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 that when it comes to trafficking in cocaine, the tariff sentence laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370 in relation to heroin also applied.

22.In Lau Tak Ming (supra), the Court of Appeal had said that up to 10 grammes of narcotics, the range of sentence should be between 2 to 5 years’ imprisonment.

23.In approaching the sentence, I agree with the submissions by Mr Tao that although there are three charges of trafficking in dangerous drugs, when I approach the question of sentencing, I can combine the narcotic content of all these three charges altogether.

24.As submitted by Mr Tao, in the case of HKSAR v Lo Chung Yin (unreported) CACC 470/2010, the Court of Appeal has already held that:-

“ In circumstances where the commission of offences of unlawful trafficking in a dangerous drug by a single defendant is closely connected in time and facts, that in imposing sentence it is appropriate for the judge to have regard to the overall narcotic content of those drugs.”

25.According to the admissions made by the defendant to the police during investigation, it was clear that all these drugs were supplied to her by the same person behind, Andy, and although the first offence and the next two offences were separated by one week’s time, I still consider that these three offences are all closely connected in time and facts and, therefore, in my judgment it is only fair in sentencing that I should consider the total quantity of the drugs in order to adopt an appropriate starting point to avoid consecutive sentencing which would be unfair to the defendant.

26.I have also given a thought to whether I should enhance the sentence further on account of the fact that the defendant is a repeated offender.  The defendant clearly had not learnt a lesson even after she has been sentenced to 16 months’ imprisonment in 2012.

27.However, I took into account that the defendant was still young, albeit not extremely young and that she obviously committed the offences under the influence of dubious peers.  She was, therefore, immature and she committed the offences because of her habit of drugs.

28.I decided not to enhance the sentence any further this time but I took this opportunity to warn the defendant that it is already the second time she committed a trafficking in dangerous drugs offence.  Should she repeat this offence again in the future, no doubt any sentence that she shall receive from the court will be enhanced because she will be treated as a repeated offender. The court clearly has a duty to pass a severe sentence with a sufficient deterrent effect in order to deter her and anybody who is contemplating to commit an offence of this kind.

29.After applying the tariff sentence guideline in Lau Tak Ming (supra), I consider that the appropriate starting point is 3 years.

30.The defendant pleaded guilty and that, in my mind, is the only effective mitigating factor and for which she would receive the usual one-third discount.

Order

31.Therefore, the sentence that the defendant is going to receive is 2 years’ imprisonment on each charge and I order that the sentences to run concurrently.