HKSAR v. LIN CHUN YIK

DCCC 208/2022

[2023] HKDC 234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 208 OF 2022

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REASONS FOR SENTENCE

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Background

1.  The Defendant is charged with one count of trafficking in a dangerous drug, namely 6.81 grammes of a solid containing 6.02 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts of the case are summarised as follows: at about 0205 hours on 28 November 2021, a private car bearing the registration number WE8143 (“the Car”)  was seen wandering around Tong Tak Street and Tong Ming Street, Tseung Kwan O, New Territories. Both the driver and the front seat passenger were acting furtively. At 0212 hours, police intercepted the Car. The driver and the Defendant were found on board. Upon search by police, one resealable transparent plastic bag containing a total of 18 resealable transparent plastic bags containing suspected crack cocaine was found inside the Defendant’s right trousers pocket and was seized.

3.  The Defendant was arrested for trafficking in a dangerous drug. Under caution, the Defendant admitted that the cocaine was for his own consumption. His admission under caution was subsequently post-recorded in police notebook. Three SIM cards, two mobile phones and cash of HK$7,646, amongst all, were found and seized from the Defendant.

4.  Government chemist confirmed the suspected crack cocaine was 6.81 grammes of a solid containing 6.02 grammes of cocaine. The street value of the cocaine found is estimated to be HK$10,522.

5.  The Defendant pleaded guilty and admitted to the facts. I convicted him accordingly.

Mitigation

Personal background

6.  The Defendant is now aged 19. He was born in Hong Kong. He does not have any criminal record. He is in good health. Prior to this case, the Defendant was living with his mother and elder sister in a public housing estate in Tin Shui Wai. His mother had been working as a salesperson and in the healthcare industry over the years, earning around $15,000 per month. The elder sister was unemployed and relied on the mother.

7.  Since the Defendant was 12, he stayed and was educated up to Form 4 in Hong Kong Juvenile Care Centre Bradbury Hostel. I was told that the arrangement could ease the family’s financial burden after the death of the Defendant’s father. The Defendant only saw his mother once a week. He started to work as a kitchen assistant, earning around $500 to $600 per working day in 2019. He lost the job since the Covid pandemic hit the industry and affected the restaurant that he worked. He then undertook temporary work as a construction worker in 2020. His income was unstable.

8.  He committed this offence about one month after he turned 18. It is submitted by his counsel that he committed the present offence due to financial pressure and ignorance. Counsel agrees that prior to the Defendant’s arrest, he was a drug abuser of cocaine.

Submissions

9.  Counsel for the Defendant submitted that this is a one-off incident. The Defendant has learnt a lesson and is remorseful. The commission of the current offence was out of the Defendant’s character. He committed the crime under financial pressure and that was attributable to the Defendant’s immaturity and lack of parental supervision over the years.

10.  The Defendant wrote a mitigation letter. It was mentioned that he had relatively poor concept of money since he was small. His parents had already divorced when he was in Primary 1. Since his father did not always see him, his father would buy whatever the Defendant wanted and gave him money. His father passed away when he was in Primary 6. Since then, he was sent to the hostel.  He had always been on bad terms with his mother and elder sister. He attempted to become a better self after getting into the hostel so that he could gain freedom as soon as possible. However, his mother still rejected him and left him in the hostel. He later found out that his mother sent him to the hostel because of money. He thought that money is very important because his mother had kept asking him when he would give her money.

11.  He said that when he treated his father well, his father would naturally give him money, which was simple and easy. He also felt the same for selling dangerous drugs because of this experience in his childhood. Hence, he sold drugs.

12.  He also thought that if he claimed self-consumption after arrest, he would be released after a few months, but now he understood that he was naive and it was not worthy for him to earn money in such a way. He would like to follow his uncle’s path and work as a construction trainee after release from the prison because there will be salary increment and job promotion.

13.  During his remand, he was converted to Christianity, which made him understood the importance of love and that money is not that important. He hopes that he could be released as soon as possible so that he could help the others to understand the religion. He did not regret that he was in jail because he had this opportunity to make a change in his life.

14.  The Defendant’s mother also submitted a mitigation letter. She expressed that she was shocked by the Defendant’s act. She did not observe that the Defendant had consumed drugs before. She asked for leniency from the Court and promised to supervise the Defendant in the future.

15.  Counsel submitted that there is no aggravating features in this case and urged the Court to adopt a lower starting point to reflect the Defendant’s overall culpability.

Discussion

Starting point

16.  According to Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 was applicable in cases of trafficking cocaine. The starting point for trafficking in cocaine under the guideline is 2 to 5 years for trafficking up to 10 grammes.

17.  In the present case, the cocaine involved was 6.02 grammes. Based on an arithmetic calculation, the starting point is 45.67 months.

18.  Counsel for the Defendant agrees that 45.672 months is a notional starting point for 6.02 grammes of cocaine. He refers to HKSAR v Cheung Ka Ho, Brian [2022] HKDC 1436. In that case, 45 months was adopted as the appropriate starting point for trafficking 5.91 grammes of cocaine. I agree with his submissions that a starting point for trafficking 6.02 grammes of cocaine shall be 45 months after rounding up.

Personal circumstances

19.  In HKSAR v Abdallah [2009] 2 HKLRD 437 at page 451, paragraph 32, it was stated by the Court of Appeal that:

“As for mitigation, the grievousness of the offence - a description that is borne of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

20.  Further, in HKSAR v Montoya Munoz Mauricio [2019] 1 HKLRD 439, [2019] HKCA 931, the Court of Appeal stated at paragraph 21 that:

“... it is trite that in drug trafficking cases, financial pressure should account for no weight as a mitigating factor lest potential offenders would be encouraged to succumb to it.”

21.  I have considered all the submissions made on behalf of the Defendant. However, as clearly indicated by the above authorities, a defendant’s personal circumstances shall account for no weight in mitigation for trafficking of dangerous drugs case. The Defendant is of full age when he committed the present offence. His mitigation of financial difficulties is not proved and, even if it is accepted, it shall account for no weight in reducing the sentence. Apart from the one-third discount under the guilty plea, no reduction to the sentence shall be granted.

22.  In the circumstances, I will adopt 45 months as the starting point.  After giving one-third discount, the sentence is 30 months’ imprisonment and I so order.