HKSAR v. NG SIU LUNG

DCCC 650/2018

[2019] HKDC 502

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 650 OF 2018

----------------------

----------------------

----------------------------------

Reasons for Sentence

----------------------------------

1.  This young man, currently aged 19 years, has pleaded guilty to a single charge of trafficking in a dangerous drug. The offence was committed at the Macau Ferry Terminal in Sheung Wan and involved the defendant trafficking in a total of 13.38 grammes of the narcotic cocaine.

2.  The facts are very simple in this case and the defendant has agreed to them.

3.  On 18 May 2018, at about 10.55, the defendant was intercepted for Customs clearance at the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal in Sheung Wan.  The initial investigation show the defendant’s belongings were positive to cocaine.  Defendant was then taken for a personal search and a total of 99 small bags were found inside the defendant’s underwear, and the small bags contained a total of 13.38 grammes of the narcotic cocaine.

4.  Defendant was immediately arrested and cautioned.  He said that the contents of the bags were the dangerous drug cocaine.  He was helping a person who he described as “Ah Hin” to deliver the drug to Macau and his reward that his own debt of $2,000 owed to Ah Hin would be offset by this.

5.  The street value of the drug in Hong Kong is estimated to be just over $21,000.  The defendant agrees in the facts that he has agreed that he was in possession of the drug for the purpose of unlawful trafficking initially.

6.  The defendant is now aged 19 years old.  He has no previous convictions in Hong Kong.  He had attained lower secondary education level and prior to his arrest had been a cook, earning some $16,000 a month, and his antecedent statement shows he is single and was living in Shau Kei Wan at the time of his arrest.

7.  I have obtained a background report on the defendant because of his age and also because of the requirements of section 109A of the Criminal Procedure Ordinance, Cap 221. 

8.  The defendant obviously has committed this offence at a relatively young age and this is his first offence and the offence is a serious one, warranting a term of immediate imprisonment. 

9.  The defendant came to Hong Kong from the Mainland with his mother in 2005.  He is single, educated to Form 3.  His father unfortunately passed away after his arrest in July of 2018.  His mother works as a cleaning worker and the defendant is the only son of the family.  He has a grandmother who is of a considerable age, and the defendant’s family supports the living of the grandmother in an elderly home.  Defendant worked at various restaurants as a waiter and kitchen assistant since he has left school.

10.  As far as the mitigation for the offence, the defendant admitted the matter at a very early stage.  In terms of mitigation, I am referred to the defendant’s plea of guilty at an early stage, his young age and lack of criminal record.  Defendant has been informed of the guidelines that apply to him.  The defendant has told his legal advisors that he was in financial difficulty at the time of committing the offence and his father was in ill health at that time.  He is remorseful and, as I have already said, his father has in fact now passed away, so he has learnt a bitter lesson and would not commit any offences in the future. 

11.  I have been provided with letters of commendation on the defendant from various persons and, as far as the background report is concerned, it refers to the defendant’s wish to take some form of vocational training during the course of his incarceration.  He has been encouraged in that aim, that he can, on release, commit himself to a life without any criminal involvement.

12.  Of also importance is the fact that the defendant is still supported by his family, who are here today to stand in support alongside him.

13.  As far as the sentence is concerned, the courts have very little, I will call, leeway in how they must approach the question of sentencing.  Normally, the defendant’s young age and clear record would be of considerable weight.  However, in relation to offences of this nature, involving the trafficking of dangerous drugs, the appellate decisions of this court have shown that that leeway is not available.

14.  The offence is potentially aggravated by the fact the offence was to be committed by taking the drug to Macau.  Fortunately, the defendant was intercepted before that could happen, and I do not propose in this case to treat it as an aggravating factor of the offence.

15.  The guideline appropriate to the sentencing of trafficking in cocaine is contained in the case of Lau Tak Ming [1990] 2 HKLR 370.  For trafficking in a quantity of cocaine between 10 and 50 grammes, the guideline has a starting point of 5 to 8 years’ imprisonment.  That is the operative guideline that I must apply in this case.

16.  The mitigating factor that I can take into account is the defendant’s plea of guilty, which has been indicated from a fairly early stage.  The defendant also had indicated he could be of assistance, but nothing has come about.

17.  The court is dealing with a sum of 13.38 grammes of cocaine, which puts it just over the lower limit of the 10-to-50-gramme-of-cocaine guideline.  What I can do for the defendant in this case is take the starting point for sentence at the lowest point of the guideline, which is one of 5 years’ imprisonment.  That, in fact, translates to 60 months, 6-0. 

18.  I shall give the defendant his one-third discount from that, which leads to a sentence of 40 months’ imprisonment for this offence.

19.  That will be the sentence of the court.