HKSAR v. YAU TSZ WAI

HCCC 369/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 369 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, YAU Tsz-wai, was charged with one count of trafficking in a dangerous drug contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

You pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts disclosed that on 4 January this year 2014 at around 1820 hours, the defendant was spotted to be acting suspiciously by the police near Shek Ping House, Long Ping Estate in Yuen Long.

The police intercepted the defendant and upon a search four plastic bags containing what was later confirmed to be 54.06 grammes of cocaine was found inside the black shoulder bag carried by the defendant.

The police also found 40,682.10 and Renminbi ¥21 and two mobile phones inside his windbreaker pocket. Upon arrest and under caution the defendant said he charged others $3,000 for bringing the four bags of cocaine from Tuen Mun to Long Ping Estate.

The defendant was interviewed by video and he stated that someone called “Ah Wai” knew that he was in need of money and promised to pay him $3,000 to bring the dangerous drugs to Long Ping Estate.

The defendant obtained the dangerous drugs from an unknown person in Tuen Mun and went to Long Ping Estate. There, that is at Long Ping Estate, he received $40,000-odd from another unknown man, that is on the instruction of Ah Wai. He was still waiting for instruction to deliver the dangerous drug when he was arrested.

The estimated retail value of the dangerous drug was $77,695.

The defendant’s background

The defendant is now 21 years of age. He has a clear record. He studied up to Form 3 and dropped out of school without finishing. He attended a course for repairing automobiles run by the VTC, and a two-year training at the Chinese Cuisine Training Institute. The defendant worked as a transportation worker and a tire-changer. He was unemployed since September 2013.

Miss D Crebbin, counsel for the defendant, informed me in fairly great detail how the defendant was not academically inclined and how he was not able to finish his secondary school studies. Further, how he still found it hard to finish the cooking course.

The defendant was unemployed since mid 2013 and he had been relying on his parents for his upkeep and also his own savings. He borrowed money from a finance company and so was in debt. And in a weak moment, foolishly, he was influenced by undesirable peers and agreed to traffic dangerous drug in return for money.

The defendant is remorseful. Miss Crebbin asked me to be as lenient as possible to the defendant within the guidelines, as the defendant is still young and he has the support of his family and the church.

The defendant himself wrote to me and expressed his regrets. He also explained under what circumstances he came to commit the offence.

I accept that the defendant is truly remorseful.

Pastor Lee of the Pentecostal Holiness Church in Tsuen Wan, also wrote on the defendant’s behalf. According to Pastor Lee, the defendant is a caring person who not only takes care of the elders, but also young children in church.

The defendant admitted his wrongdoings to Pastor Lee and was deeply remorseful. Pastor Lee asked me to give the defendant a chance to rehabilitate.

The defendant’s mother wrote to me. She apologised blaming herself for her failure to teach the defendant due to her own workload which resulted in the defendant committing the present offence.

The defendant’s mother also says the defendant is a caring person and a filial son. She asked me to give the defendant a chance and pass a lenient sentence.

The defendant’s sister also wrote to me. She gave me examples of how the defendant was a caring, loving and sentimental person. And she said both she and her husband understood that the trafficking of dangerous drugs ruins our society and lamented that her brother committed such a serious offence for money.

She said that she realised in the past she had not openly expressed her love and care for her brother, the defendant, and promised to do so in future.

The defendant’s sister also asked me to sentence the defendant on the lenient side.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to life imprisonment.

The quality of cocaine involved is 54.06 grammes which fell into the category of 50 to 200 grammes with a starting point of 8 to 12 years, that is according to the authority of Pedro Nel Rojas [1994] 2 HKCLR 69 adopting the guidelines in Lau Tak Ming [1990] 2 HKLR 370.

The defendant was 20 at the time of the offence, and this is the first time he is in trouble with the law.

I am impressed by the love and care shown by the defendant’s family to him. The defendant is fortunate to have his family rallying around him.

While the defendant was young at the time of the offence, in my view he is old enough to be responsible for his own behaviour, and neither his mother nor his sister should feel responsible for what the defendant had so foolishly done himself.

I accept the defendant is truly remorseful, and I do hope that he will be strong enough to resist temptation in future and lead a useful life after he is discharged from the prison.

After taking into account the circumstances of the offence and the quantity of cocaine, I am of the view that a starting point of 8 years is appropriate.

As the defendant has no previous convictions and there are no aggravating factors, I will adopt 8 years as the correct sentence after trial.

The defendant had pleaded guilty at the earliest opportunity, and I will give him the usual one-third discount. There are no other grounds to further reduce the sentence.

So for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years 4 months’ imprisonment.