HKSAR v. CHOW KING PO

DCCC 245/2018

[2018] HKDC 944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 245 OF 2018

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. That is 7.86 grammes of a solid containing 7.86 grammes of cocaine. The street value of that amount of cocaine is $7,435.

2.  The facts of this case is that the defendant was caught red-handed with this amount of cocaine whilst delivering it in a taxi. On 8 January this year at around 2 am, a police officer saw a taxi pull over in Mong Kok and saw the defendant peek out of the window.  When the defendant saw the police officer, he shut the window and the taxi immediately moved off. This aroused the suspicion of the police and the taxi was stopped and the defendant searched.  In the defendant’s trouser pocket, the police found 10 plastic bags of cocaine.

3.  Under caution, the defendant told the police that that amount of cocaine was for his own consumption. 

4.  At the police station the defendant was searched again and in his underpants the police found a further 26 plastic bags of cocaine. 

5.  Again, under caution, the defendant told the police that that amount of cocaine was bought by him for his own consumption.

6.  The police also found on the defendant $11,919.50 as well as RMB900 and two mobile phones.

7.  In a subsequent video recorded interview, the defendant then made a full admission of trafficking dangerous drugs.  He admitted that he was delivering the cocaine for somebody called “Ah Kit” and he was delivering it by taxi.  He had already made two deliveries that evening. On the first delivery he had sold three bags of cocaine to a male who had paid him $900.  On the second delivery, he had sold two bags of cocaine and that male had paid him $600, and it was when he was about to make his third delivery that he was caught by the police.  He told the police that he was to sell each bag for $300 and he would be paid $50 commission for every bag he sold and delivered.

8.  He also told the police that the Hong Kong dollars found on him was the proceeds he had received from previous drug sales. He also told the police that one of the mobile phones was for contacting Ah Kit.

9.  The taxi driver did confirm those deliveries the defendant had made earlier on that evening.

10.  If the defendant would have received $50 for selling the remaining 36 bags of cocaine seized by the police, he would earn $1,800 commission and, of that $11,900-odd found on the defendant, that would equate to 39 bags of cocaine sold.  39 bags sold at $300 would amount to $11,700.  If the defendant was to receive $50 for every bag sold and he did sell 39 bags, that commission alone would be $1,950.  That is very easy money for a 17-year-old to earn.

11.  The defendant at the time of this offence was not even 17; he was only 16 years old and 9 months.  He also had a clear record.  I have been told that he was living with his mother and two siblings. In 2015 his mother left an unhappy marriage to live with her brother and took her three children with her.

12.  After plea on the last occasion I did call for a Training Centre report.  I do not intend to repeat the details of that report. I also received many mitigation letters.  I received a letter from the defendant himself as well as his mother, other family members, members of his church, social workers and an employer.  I have also today received a long letter from the defendant’s father.  I have taken all the contents of those letters into account.

13.  From the Training Centre report, it is clear that the defendant was not a good student at school.  It was not just a question of not being academic.  He was rebellious and had a poor conduct record. 

14.  When he left school, he did not go out to find a job.  He hung out in amusement games centres, karaoke lounges and became nocturnal.  When that happens, inevitably, youngsters become involved with triads and often drug-trafficking.  The defendant very frankly said that he became involved in drug-trafficking to pay for his entertainment expenses. 

15.  Drug traffickers will target young people to do their drug-trafficking and to be drug mules.  When a youngster can earn $2,000 a day, they become easy targets.  The defendant himself very frankly said he began to traffic drugs in October 2017 and began to take drugs one month later. He was arrested in January 2018.

16.  I assume because of his previous clear record and young age, he was given bail.  Despite this chance of bail, the defendant continued to take drugs.  In fact, he quite frankly said he took drugs until the day before his plea in this court.

17.  The report says when he was remanded he feels remorse.  Well, most feel remorse when they lose their liberty.  What would have indicated real remorse and a genuine desire to rehabilitate, what would have indicated real remorse would have been, after the defendant was granted bail, is if he had stayed away from drugs and bad peers.  An indication to genuinely rehabilitate would have been to go back to school or to sign up for a vocational course.  What does not indicate real remorse is to continue to take drugs until you appear in court.

18.  Therefore it is not surprising that the Training Centre report deems the defendant not suitable for Training Centre.  Therefore it is not a struggle for me to decide whether or not a Training Centre is an option.  The defendant has sadly made the decision very easy.

19.  For such a serious offence such as trafficking dangerous drugs, only a term of imprisonment can be appropriate, especially now, after reading this report.  I strongly advise and suggest that the defendant spends the time wisely, going back to school and studying whilst he serves a term of imprisonment or learning a trade.

20.  It was initially put forward in mitigation that part of the dangerous drugs was for self-consumption, that the defendant was given part of the cocaine as a reward for delivering the rest.  But that was not what the defendant told the police and the prosecution challenges that mitigation. 

21.  Today, the defence do not seek to continue to rely on that mitigation.  I would not have accepted that mitigation without more evidence.  The defendant has no previous conviction for drug offences. There is no evidence he was a drug addict in January 2018.  The admissions to the police indicate all 36 packets were for sale and the reward the defendant would get was $50 per packet sold.  Even if the defendant did indulge in taking cocaine, it was not necessarily a fact that he would be given any of the cocaine that was found on him for free.

22.  Mr Yau has said all he can on behalf of the defendant.  As I have said, I have taken everything in the mitigation letters into account. 

23.  The Court of Appeal has set down guidelines for trafficking cocaine.  In fact, it says that the same guidelines for trafficking heroin should apply.  I take into account the guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370.  Where up to 10 grammes is trafficked, a 2-to-5-year term of imprisonment is appropriate.  Mathematically speaking, where 7.5 grammes is trafficked, a 4-year-and-3-month starting point would be appropriate. Here we have 7.86 grammes.

24.  I accept that the defendant was not doing this long before he was caught.  I accept he was young, immature, weak-willed, tempted by easy money and bad peers.  But the defendant has no more excuses from now on.  The defendant cannot say he does not know how serious this offence is if he is caught again. 

25.  The defendant’s best mitigation is his plea of guilty.  Other good mitigation is the defendant’s clear record and his age at the time of the commission of this offence, which will go in his favour.

26.  Having taken those factors into account, I will take for this quantity of drugs a 3-year-and-6-month starting point.  He pleaded guilty.  He is entitled to a discount of one-third.  When that one-third is applied to that starting point, it will reduce that to 2 years and 4 months.