HKSAR v. CHAU WING YEE

DCCC 959/2020

[2021] HKDC 569

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 959 OF 2020

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REASONS FOR SENTENCE

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1.  Ms Chau pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars are that she, on 12 May 2020, outside Soho Tower, No 25 Hart Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 7.62 grammes of a solid containing 5.64 grammes of cocaine.

Facts admitted by Ms Chau

2.  Shortly after 1 pm on 12 May 2020, a male person walked out from Soho Tower in Hart Avenue, TST and approached Ms Chau and passed some money to her. Police stopped them both.

3.  Upon body search of Ms Chau, police found from her trouser pockets the following:-

(a)  Three plastic bags containing a total of 2.10 grammes of a solid containing 1.71 grammes of cocaine (E1);

(b)  Two $1,000 banknotes;

(c)  Four plastic bags containing a total of 1.36 grammes of solid containing 1.02 grammes of cocaine (E3);

(d)  14 plastic bags containing a total of 2.32 grammes of a solid containing 1.90 grammes of cocaine (E4); and

(e)  11 plastic bags containing a total of 1.84 grammes of a solid containing 1.01 grammes of cocaine (E5).

4.  The estimated street value of E1, E3-5, ie the drug seized in this case was $5,758.44.

5.  Under arrest and caution at the scene, Ms Chau said she sold drugs to the male person as her father had liver disease and she wanted to earn some “quick money”.

6.  During a VRI conducted on the same day, Ms Chau under caution said:-

(a)  A man in a bar obtained her number and promised to contact her when there is a job to distribute drugs;

(b)  At about 10 am on the day of arrest, a man called instructing her to pick up drugs in a rear lane of Mong Kok and promised to pay her $50-$100 for distributing each pack of drugs; she therefore went to pick up the drugs;

(c)  Afterwards, she received a call asking her to deliver E1 to the subject location;

(d)  She called back the number displayed upon arrival; a male person gave her the two $1,000 banknotes; before she could hand over E1 to him, the police intercepted them; and

(e)  Regarding the other drugs on her, she was to keep them until she had purchasers.

Criminal record

7.  Ms Chau has a clear record.

Antecedents

8.  Ms Chau is aged 31 (30 at the time of the offence), educated to F4 level, unemployed at the time of arrest.  Ms Chau is single and lived with his parents and brother in public housing in Tin Shui Wai.

Mitigation

9.  Ms Koo Yeuk Lan of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Chau.

10.  The following is a summary of the mitigation submissions.

11.  According to the guidelines set out in HKSAR v Lau Tak Ming & Ors [1990] 2 HKLR 30, for trafficking in up to 10 grammes of cocaine, the suggested sentence is a prison term of 2 to 5 years.  For the amount of drug in this case, that will translate into a starting point of 44 months and a sentence of 29 months’ imprisonment after the 1/3 reduction.

12.  Ms Chau has a clear record.  Ms Koo submitted that the court may consider giving Ms Chau further reduction in view of her previous good character.

13.  From December 2018 to December 2019, Ms Chau worked as a chef in the canteen of Castle Peak Bay Immigration Centre, earning about $12,000 per month.  She intended to further her career in the hotel and catering industry but was laid off soon after the outbreak of Covid-19 in February 2020.

14.  Before arrest, Ms Chau lived with her parents and elder brother.  Her father is 66, a poultry store worker.  Her mother is 68, a housewife.  Her elder brother is 32, a construction site worker who seldom contributed financially to the family.  Mr Chau senior became the sole breadwinner of the family after Ms Chau became unemployed.  However, Mr Chau senior was suffering from liver disease requiring constant medical care and treatment: medical report submitted.

15.  Ms Chau foolishly committed the offence because of the financial burden.  However, she was cooperative with the police and admitted the offence in the first instance.

16.  Ms Chau had not yet received any remuneration for distribution of drugs.  Ms Chau has learnt a lesson and is highly remorseful and will not re-offend.

17.  Ms Koo submitted three mitigation letters on behalf of Ms Chau written respectively by Ms Chau, Mr Chau senior and a pastor.  The contents generally are that Ms Chau had worked in the catering industry for almost 10 years; that after she finished her stint working in the Immigration Centre, she transferred to work as a part-time assistant to a chef in a hotel; that it was short-lived too due to the pandemic; that she wrongly took an acquaintance’s advice to earn quick money because of financial reason and of her worry about her father’s medical condition; Ms Chau asked for a lenient sentence to facilitate an early reunion with family; that Ms Chau will come to terms with reality on release and will look for a job in construction-related work or kitchen work.

Sentence

18.  Trafficking in a dangerous drug is a serious offence.

19.  According to the tariff for trafficking in cocaine, the sentence after trial for trafficking in 5.64 grammes of the drug from a purely arithmetical perspective is 3 years 8 months’ imprisonment.  I can see no reason for departing from this figure in the case of Ms Chau.

20.  Ms Chau pleaded guilty in good time and therefore is entitled to a 1/3 discount.  For an offence of this nature, being a person of previous good character carries little weight as a mitigating factor.  As much as I sympathize with Ms Chau’s predicament, I must not allow myself to indirectly encourage unscrupulous drug traffickers to recruit persons of previous good character to do their dirty work for them by my imposing a lighter sentence on this latter type of persons.  Besides, persons young and old, with a clear record or being a recidivist, must be deterred from committing or re-committing drug trafficking offences by the imposition of a sufficiently heavy sentence. There is sadly no other way.

21.  However, as an act of limited mercy, I will round down Ms Chau’s sentence to the nearest month.

(Ms Chau, please stand)

22.  Ms Chau will therefore go to prison for 29 months.