HKSAR v. SO KIN WAI

DCCC 96/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.96 OF 2012

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.  The defendant was stopped and searched by Police who were conducting an anti-dangerous drugs operation in the area of Lei Muk Shue Estate, Kwai Chung at around 7:55pm on 5^th December 2011.

3.  Plastic bags were found from the defendant’s trousers pocket. Upon examination by the Government Chemist, it was confirmed that they contained a total of 24.66g  of a solid containing 21.38g of cocaine.

4.  Under caution, the defendant confessed that he was instructed by an unknown person to pick up the drugs from a flower bed outside Kwai Chung Plaza at about 7pm. The defendant was to deposit the majority of the dangerous drugs at another flower bed outside Tsui Shue House for someone else to retrieve. As a reward, the defendant was to keep one of the plastic bags which contained around 0.74g of the substance. The defendant admitted at the time of plea that he possessed all the dangerous drugs found on him at that time for the purpose of trafficking.

5.  The total street value of the dangerous drugs was estimated at about $27,027.

Mitigation

6.  The defendant is 23 years old and of previously clear record. Contents of the antecedents are agreed. The defendant was born in Hong Kong and educated up to form 1 level. The defendant had worked as kitchen helper and travel agent assistant. The defendant was living with his parents and his elder sister. Before his arrest, the defendant was working as a transportation worker on a casual basis, earning about $8,000 to $10,000 per month. The defendant contributed about $2,000 per month to support his parents.

7.  The defendant had fully cooperated with the Police since his arrest. The defendant indicated that he would be pleading guilty to the charge at the earliest opportunity, saving the witnesses’ and the court’s time and shows that the defendant is remorseful.

8.  The defendant committed the offence out of greed for the reward that was offered to him by the man called “Xiao Bai”.

9.  The defendant has the full support of his family and his steady girlfriend. They plan to marry when their financial situation improve in the future. Since his remand on 5^th December 2011, the defendant has quit his drug habit.

Sentencing tariff

10.  The applicable guidelines for trafficking in cocaine, as confirmed in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370j. Sentencing for trafficking in cocaine for quantities between 10g and 50g is that of 5 to 8 years’ imprisonment.

Sentence

11.  The maximum sentence for trafficking under s.4 of the Ordinance is that of life imprisonment and a fine of $5 million. This is an excepted offence and as such although the defendant is 23 years old, imprisonment need not only be imposed as a last resort.

12.  The defendant’s age does not fall into the category of extreme youth and as such is not a mitigating factor for the offence of trafficking in dangerous drugs.

13.  There are no aggravating factors such as international elements or the defendant being a mastermind of the trafficking to cause any enhancement of the starting point. On the other hand, having heard the defendant’s mitigation, there may be something to allow me to depart from the sentencing tariff slightly.

14.  I note that the defendant has the full support of his family. I can tell from their present in court as well as from their letters that they care about and love the defendant very much. There are however cogent reasons for the Court of Appeal to lay down sentencing guidelines in trafficking cases. Not only was the defendant harming himself in using the drugs, he was harming or assisting in the process of harming other people in his act of trafficking. This kind of action needs to be dealt with seriously in order to deter others.

15.  I will therefore follow the guideline and adopt a starting point of 69 months’ imprisonment. I will reduce this starting point by 3 months to that of 66 months in recognition of his clear record and full admission to and cooperation with the Police from the very beginning. I will then grant the defendant the full one third discount for his guilty plea and sentence him to 44 months’ imprisonment.