HKSAR v. Choi Wai Kwong

DCCC 774/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 774 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty today to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The facts of this case are very straightforward.  On 30 May this year, at about 10 am, a police officer and his colleagues saw the defendant acting suspiciously so intercepted him. This was in Sham Shui Po, more specifically, 149 Nam Cheong Street. The defendant was stopped and he was searched.  In a shoulder bag carried by the defendant, the police found a resealable plastic bag containing “Ice” which was concealed in a candy box.

3.The defendant was arrested for possession of dangerous drugs and told the police that it was “Ice” and it was for his own consumption.  The defendant also had in his possession $12,397.90.  Under caution, under subsequent record of interview, the defendant remained silent.   

4.The agreed prevailing value of the quantity of drugs in his possession was $9,729.  The drugs were later confirmed by the government chemist to be 12.92 grammes of a crystalline solid containing 12.64 grammes of “Ice.”  I note that all this “Ice” was contained in one resealable plastic bag.

5.The defendant is not a man of clear record.  He has six previous convictions but none relate to either trafficking dangerous drugs or even possession of dangerous drugs.

6.In mitigation, I have heard the defendant is 31 years old, single and at the time of the offence recently unemployed.  He had previously been employed as a delivery worker earning HK$10,000 a month.  He lives at home with his girlfriend and a sibling.

7.I have been told in mitigation that he has been a drug addict for about two years consuming “Ice.”  It was put forward as mitigation that he did traffic that quantity of “Ice.”  However, there was some of it he would consume himself, a small portion.  There was no attempt to quantify how much was for his own consumption.  The court has been asked to take that mitigation into account when considering an appropriate starting point.

8.I have been told that the cash that was on the defendant was part previous salary as well as some lucky money that he would carry on him. 

9.There are guidelines where trafficking “Ice” is concerned and I have referred myself to the authority of the Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.  Where up to 10 grammes of “Ice” is trafficked, an appropriate starting point would be between 3 to 7 years.  Where between 10 to 70 grammes is trafficked, the appropriate starting point would be between 7 to 10 years.

10.Defence counsel also produced an authority, HKSAR v Cheuk Kin Man CACC 294 of 2009 which refers to a discount under such mitigating circumstances but, in particular, I have been referred to paragraph 12.  The authority clearly says that any discount would not be substantial because the court would take into account that there would be a latent risk that the drugs intended for self-consumption might also be trafficked.  That would apply here.  I will consider it as a mitigating factor but state that a discount would be minimal.

11.Defendant, please stand up.  According to the guidelines, a starting point for this quantity of drugs should be just over 7 years.  I have considered all the facts of the case, the quantity of dangerous drugs here as well as the mitigation and background of the defendant.  Defendant’s best mitigation is his plea of guilty today.   

12.Having considered all those factors, I will take a starting point of 6 years and 3 months.  Defendant has pleaded guilty and is entitled to a discount of one-third.  Accordingly, defendant is sentenced to 4 years and 2 months’ imprisonment.