HKSAR v. KONG CHEUK YI

DCCC 291/2022

[2023] HKDC 317

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 291 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.

2.  The facts admitted by the defendant can be summarised as follows.

3.  On the night of 10 December 2021, police set up a road block outside Fuk Wing Street, Sham Shui Po, and intercepted a private car driven by the defendant.  The police officers searched the car and found in the storage cavity behind the steering wheel a plastic bag containing 36 resealable packets of white solid consisting a total of 5.38 grammes of a solid containing 4.52 grammes of cocaine. Under caution, the defendant claimed that the cocaine was bought for his own consumption and asked for a chance.

4.  The street value of the dangerous drug was estimated to be around $5,300.

5.  Two mobile phones were also seized from the defendant. The defendant admits in court that he possessed the dangerous drug in this case for unlawful trafficking.

6.  The defendant has two previous convictions, both unrelated to dangerous drugs.

7.  Mr Wu, counsel for the defendant, has submitted to the court a written submission in mitigation and made further oral submission in clarification.

8.  The defendant is now aged 31. He was born in Hong Kong, receiving education up to Form 2. He is single, living with his mother who is a retired worker together with his two siblings. The household expenses were shared by the defendant and his younger sister. The domestic budget was said to be very tight. From time to time, both ends were unable to meet.

9.  The defendant was previously a construction site worker earning a sum of $18,000 a month. He gave $10,000 to his mother for household expenses. In August 2021, he was made redundant in trade as a result of the pandemic crisis. He then lived upon his small savings since then, so he was in need of money badly. Under the financial pressure, he allowed himself to be persuaded by a friend to work as a courier to deliver dangerous drugs for a reward of not less than $2,000 on each occasion.

10.  Mr Wu submits that there are two strong mitigating factors in the present case: 1. his guilty plea; and 2. the defendant being the offender of this kind of case.  Counsel asks the court to adopt a lower starting point following the guideline in R v Lau Tak Ming and give the defendant a full one-third discount for his plea of guilty.

11.  Defence counsel hands up mitigation letters written by the defendant, his ex-colleague and his mother, pleading for leniency. Documents have also been submitted in support of his religion. I have duly considered all the mitigation letters and documents.

12.  Trafficking in dangerous drug is a very serious offence. The Court of Appeal has laid down guidelines for trafficking of different kinds of drugs. R v Lau Tak Ming[1] and AG v Rojas[2] set down the tariff for trafficking of cocaine up to 10 grammes being 2 to 5 years’ imprisonment. In this case, the defendant trafficked 4.52 grammes of cocaine. I will take 3 years and 3 months’ imprisonment as the starting point.

13.  Insofar as the mitigation is concerned, I can understand that many people in Hong Kong were under financial pressure during the pandemic. However, financial difficulty in serious offences such as the present one is not a valid mitigating factor. Apart from his guilty plea for which I will give him the full one-third discount, there is no other valid mitigating factor.

14.  For the above reasons, the defendant is sentenced to 2 years and 2 months’ imprisonment.