HKSAR v. CHING WING KIT, BILLY

DCCC 269/2023

[2023] HKDC 1641

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 269 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

Facts

2.  On 18 November 2022 at around 1650 hours, the defendant and another person were seen acting suspiciously. Police officer intercepted them for inquiry. Upon search, 17.92 grammes of crack cocaine (with narcotic weight of 13.59 grammes)  was found in a plastic bag inside a sling bag that the defendant was carrying. The drugs was put in 2 resealable plastic bags containing 67 plastic bags.

3.  Under caution, the defendant told the police that the drugs in question was for his own consumption and that he bought those drugs around 3-4 nights before. The defendant was arrested for trafficking in dangerous drugs.

4.  Upon search at the police station, it was found that he had on his body HK$4,610, a mobile phone with a phone case, a SIM card, and a memory card. No paraphernalia were found in his residence upon house search.

5.  The estimated street value of the drugs in question was HK$26,324.48.

6.  In conclusion, the defendant had on 18 November 2022, outside Hong Yat House in Hong Kong, unlawfully trafficked in a dangerous drug, namely 17.92 grammes of a solid containing 13.59 grammes of cocaine.

Criminal record

7.  The defendant had a clear record.

Mitigation

8.  The defendant is aged 29. He is married and a father of a 5-year-old daughter. Prior to his remand, he lives with his wife, daughter, retired parents and elder brother. He used to work as a transportation worker earning about $20,000 per month and he contributed around monthly $12,000 to his family.

9.  Before the present offence, his wife has become a victim of investment scam on the internet, as result of which she suffered loss and run into debt of around HK$150,000. Out of stupidity but love for his wife, the defendant committed the present offence in order to earn fast money to repay his wife’s debt.

10.  Defence counsel submitted that in light of the quantity of drugs involved, following the sentencing guideline, the appropriate sentence starting point should be around 63 months’ imprisonment. He urged this court to give the defendant credit for his guilty plea and by reason that he is a man of clear record. He also urged this court as far as possible to impose a lenient sentence on the defendant so that he could reunite with his family and take care of his parents and young daughter.

Discussion

11.  Before sentencing, this court has carefully considered mitigation by defence counsel.

12.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life.

13.  For trafficking 13.59 grammes of cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point is, as said by the defence counsel, 63 months’ imprisonment.

14.  The offence is a very serious offence and it is well-established that personal background is seldom a mitigating factor. The fact that the defendant committed the present offence because he was in need of money to repay a debt owed by the wife is not a valid mitigating factor.

15.  Considering the mitigation done on the defendant’s behalf, the most valid mitigating factor is that of his guilty plea for which he is entitled to full one-third sentencing discount. His sentence is therefore discounted to 42 months’ imprisonment.

16.  It is also well-established that no extra sentencing discount could be afforded to the defendant by reason that he had a clear record as the same had already been subsumed in the one-third sentencing discount.

17.  Accordingly, the defendant is sentenced to 42 months’ imprisonment in this case.