HKSAR v. CHOW HOI YAM AND ANOTHER

DCCC 1016/2021

[2023] HKDC 142

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1016 OF 2021

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REASONS FOR SENTENCE

D1 and D2 each faces a charge of "Trafficking in a dangerous drug" (Charges 2 and 1 respectively). They also face a joint charge of "Trafficking in a dangerous drug" (Charge 3).

2.  D1 pleaded guilty to Charges 2 and 3.  D2 pleaded guilty to Charge 3.  I granted the prosecution's application to leave Charge 1 against D2 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Charge 2 (against D1 only)

3.  About 5:25 a.m. on 14 April 2021, PC 17220 (PW1)  stopped D1 for enquiry at No.65 Hoi Yuen Road, Kwun Tong.  Upon search, PW1 found 5 transparent resealable plastic bags which contained a total of 1.80 grammes of a solid containing 1.54 grammes of cocaine in D1's wallet.  He also found in D1's underpants:  (i)  a transparent resealable plastic bag containing 9 transparent resealable plastic bags which contained a total of 1.47 grammes of a solid containing 1.37 grammes of cocaine; (ii)  a transparent resealable plastic bag containing 6 transparent resealable plastic bags which contained a total of 0.97 gramme of a solid containing 0.89 gramme of cocaine; and (iii)  a transparent resealable plastic bag containing 5 transparent resealable plastic bags which contained a total of 3.31 grammes of a solid containing 2.90 grammes of cocaine.  All the cocaine found on D1 is collectively identified as E1.

4.  PW1 arrested D1 for "Trafficking" and brought him to Kwun Tong Police Station.

Charge 3 (against both D1 and D2)

5.  PW1 conducted a further body search on D1.  He found: (i)  cash in the sum of $13,794; and (ii)  a key card ("the Card")  to Room 1321, Nina Hotel Tsuen Wan West ("the Room").  Under caution, D1 admitted that the Card could open the door of the Room.

6.  About 11:25 a.m. on the same day, DPC 20925 (PW2)  and his teammates entered the Room using the Card. No one was inside.  PW2 opened the safe in the Room ("the Safe")  with the assistance of the hotel staff.  The following items were found inside :-

(i)  83 transparent resealable plastic bags which contained a total of 23.04 grammes of a solid containing 19.29 grammes of cocaine (collectively E2);

(ii)  an electronic scale; and

(iii)  numerous empty transparent resealable plastic bags.

7.  About 4:40 p.m. on the same day, D2 and 2 persons (surnamed Chow and Tang respectively)  entered the Room.  They were immediately subdued by DPC 13123 (PW3)  and his teammates.

8.  PW3 arrested D2 for "Trafficking".  Under caution, D2 admitted that he received the cocaine from a male and passed it to D1, who would then distribute it[1].

9.  In his video recorded interview conducted on 15 April 2021, D2 admitted that the Room was rented in his mother's name on 12 April 2021.  He told his mother that he wanted to rent a hotel room to hang out with his friend (i.e. D1).  D1 and D2 each possessed a key card to the Room.  D2 claimed that E2 was given by a male named "Sheung Dan" ("the Male").  D1 has expressed to D2 his interest in drug trafficking, so D2 contacted the Male to ask for drugs.  About 6:00 p.m. on 13 April 2021, D1 and D2 met the Male in a silver private car driven by him at the taxi stand of Nina Hotel.  The Male handed to D2 a large transparent resealable plastic bag which contained multiple smaller transparent resealable plastic bags containing cocaine in white and pink colours.  D1 and D2 then brought the cocaine to the Room.  D2 understood that all the proceeds of selling the cocaine had to be handed over to the Male and D2 would receive remuneration in return.  D1 put part of the cocaine in the Safe and locked it. D1 also took some of the cocaine and left the Room around 7:00 p.m. [on 13 April 2021].

10.  CCTV footage captured D1 and D2 entering and leaving the Room on numerous occasions either alone or together.

11.  D1 now admits that he unlawfully trafficked in E1 at No.65 Hoi Yuen Road, Kwun Tong on 14 April 2021.  D1 and D2 now admit that they unlawfully trafficked in E2 in the Room on the same day.

Mitigation

D1

12.  He is 16 (will turn 17 in early March 2023)  and has a clear record.  His counsel Mr. Davies informed me D1 has completed F.3 and is currently studying at the Vocational Training Council.

13.  In mitigation, Mr. Davies submitted that D1 was only 15 when he committed the present offences.  He was not a major player and was used by others.  Mr. Davies also submitted that D1 was a good student and was admitted to a "Band 1" school.  The breakup of his parents and his mother's subsequent depression adversely affected D1's academic performance and led to his mixing with undesirable individuals. Letters from D1's mother and social worker were placed before me; their contents are duly noted. 

D2

14.  He is 17 and has a clear record.  His counsel Ms. Ho informed me that D2 was a full-time student residing with his mother and younger brother.  D2's father passed away in April 2017 due to cancer.    Almost around the same time, D2's mother was diagnosed with cancer and received surgery in May 2017.  As a result, D2's mother was unable to work and the family had to depend on social welfare.

15.  In mitigation, Ms. Ho submitted that D2 committed the present offence in order to earn some quick money to relieve his family financial burden.  His role was minor and he has learned a bitter lesson.  He is aware of the trouble he has caused to his family.  D2 has been remanded in jail custody for 16 months since he was arrested for another drug-related offence[2] in early September 2021.

Sentence

16.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

17.  Although both defendants are under 21, by virtue of section 109A(1A)  of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  I accept that as a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like D1 and D2 – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

18.  When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

19.  The Court of Appeal has laid down clear sentencing guidelines for cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  For 10 to 50 grammes, the range is 5 to 8 years.

D1

20.  In Charge 2, he trafficked in 6.7 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 4 years' imprisonment.  I adopt a starting point of 4 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 32 months.  I will grant him an additional discount of 3 months for his young age, reducing the sentence to 29 months.  I sentence D1 to 29 months' imprisonment for Charge 2.

21.  In Charge 3, he trafficked in 19.29 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 8 months' imprisonment.  For ease of calculation, I adopt a starting point of 5 years and 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 44 months.  I will grant him an additional discount of 4 months for his young age, reducing the sentence to 40 months.  I sentence D1 to 40 months' imprisonment for Charge 3.

22.  Bearing in mind the totality principle as well as the total quantity of cocaine involved in both charges[3], I consider a global starting point of 74 months' imprisonment appropriate. With the discount for the timely guilty pleas and young age, the overall sentence is reduced to 44 months.  Hence, I order 4 months in Charge 2 to run consecutive to Charge 3.  The total prison term for D1 is 44 months.

D2

23.  In Charge 3, he trafficked in 19.29 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 8 months' imprisonment.

24.  Similarly, I adopt a starting point of 5 years and 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 44 months.  I will grant him an additional discount of 4 months for his young age, reducing the sentence to 40 months.  I sentence D2 to 40 months' imprisonment for Charge 3.