HKSAR v. Chang Kwok Hei

DCCC 593/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.593 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 11^th April 2013 trafficked in 11.04g of a solid which contained 5.82g of cocaine at the junction of Ha Heung Road and Chi Kiang Street in To Kwa Wan.

Summary of facts

2.The defendant was spotted walking along Ha Heung Road alone furtively and was intercepted by police officers patrolling in the vicinity.

3.One transparent re-sealable plastic bag with suspected dangerous drugs wrapped in a piece of tissue kept inside a metal box was found in the right front pocket of the defendant’s trousers upon search. The defendant said the box of drugs was to be handed over to a friend.

4.The defendant was arrested and cautioned for trafficking in dangerous drugs. Under caution, the defendant said that a person nicknamed “Ah Bao” called and asked if the defendant could find him some ‘soft drink’. The defendant called a man called “Thai Chai” who told the defendant that he had stock and that it cost $8,500. The defendant then took a car ride with “Thai Chai” to Kowloon and was given the metal box by “Thai Chai” after the defendant alighted from the car. The defendant was asked to deliver the box to “Ah Bao’s” friend. The defendant was arrested on the way.

5.In a subsequent video recorded interview, the defendant further stated under caution that he knew “soft drink” meant cocaine, that he knew the things inside the box was cocaine, that Thai Chai had told him cocaine was available for $8,500. The defendant said he was only helping his friend and did not make any money out of it.

6.Examination by Government Chemist confirmed the things inside the metal box contained the solid with the narcotic contents as particularized.

7.At the time of his arrest, the defendant had in his possession 1 mobile phone, cash of RMB5 and HKD$25.20.

Previous convictions

8.The defendant was convicted of one charge of criminal damage and one charge of assault occasioning actual bodily harm on 30^th November 2012 and was fined $1500 for each charge. He has no other previous convictions.

Mitigation

9.The defendant is 26, single, and he lives with his parents. Mr. Lee for the defendant pointed out the defendant’s frank admission to the Police upon arrest and the defendant’s strong family support. Mr. Lee also suggested that the sentencing guidelines in the case of R v Lau Tak Ming should not be a straitjacket for this court and that the court should take into account the fact that the defendant was only acting as a courier and did not gain anything from it. Mr. Lee suggested that the defendant was foolishly exploited by the real traffickers behind the scene.

Sentencing tariffs

10.The sentencing tariffs for trafficking in cocaine is as set out in the case of R v Lau Tak-ming and Others [1990] 2 HKLR 370, as adopted in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For narcotic contents of up to 10g, the proper starting point is between 2 to 5 years’ imprisonment. In our present case, at 5.82g, the starting point would be around 45 months’ imprisonment.

Sentence

11.The defendant might not have earned ‘a single cent’ but without his participation as a courier, the sale of the dangerous drugs could not have taken place. Mr. Lee did not refer me to any authorities which suggest that the sentencing tariffs should not apply to couriers such as the defendant.

12.Mr. Lee mentioned that the defendant is a young person during his mitigation. I find that someone who is 26 years old does not fall into the extreme youth category when considering a sentence for trafficking in dangerous drugs and as such his age is not a mitigating factor.

13.Having heard from Mr. Lee for the defendant, I find that there are no mitigating factors that would allow me to depart from the sentencing tariff.

14.As such, I will adopt a starting point of 45 months’ imprisonment, reducing it to 30 months’ imprisonment in recognition of the defendant’s guilty plea. The defendant is therefore sentenced to 30 months’ imprisonment.