HKSAR v. HO YU LAP TIMOTHY

DCCC 897/2022

[2023] HKDC 850

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 897 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

Facts

2.  At around 3:45 pm on 9 June 2022, plainclothes police officer PW1 was on patrol outside No 118 Soy Street, Mong Kok, Kowloon, when he intercepted then looking nervous defendant.  The defendant appeared to be reluctant and backed away.  PW1 grabbed hold of the defendant’s arms to prevent him from fleeing.

3.  The defendant was searched and one transparent resealable plastic bag wrapped in two pieces of tissue paper, containing 16 smaller transparent resealable plastic bags containing a total of 4.76 grammes of a solid containing 3.95 grammes of cocaine was found inside the defendant’s left rear trouser pocket.

4.  The defendant was arrested for possession of a dangerous drug.  Under caution, he stated that he bought the drugs a few days ago from another person for his own consumption and he asked for a chance.

5.  The Government Chemist confirmed the narcotic contents of the drugs seized.

6.  At that time, the defendant had 2 mobile phones with him and cash of HK$1,608.

7.  The estimated street value of the cocaine seized was around HK$5,893.

8.  At the material times, the defendant was in possession of the cocaine seized for the purpose of unlawful trafficking.

Criminal Record

9.  The defendant has 2 previous convictions, not similar to the present charge. 

Mitigation

10.  The defendant is aged 27.  He has a girlfriend and they have a 4-year-old daughter.  His parents were divorced and he was brought up predominantly by his mother.  Before his arrest, he was a scaffolding worker earning around $15,000 per month.

11.  Defence counsel conceded that following the sentencing guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point in this case is around 38.22 months’ imprisonment.

12.  Defence counsel submitted that both the court and the prosecution were informed of the intended guilty plea of the defendant 7 months before the trial date.  Defence counsel urged this court to give the defendant a one-third sentencing discount despite the fact that he pleaded not guilty on the first available opportunity as the previous legal adviser had only paid a brief visit to the defendant before entering into a plea bargain with the prosecution, and that result of the unsuccessful plea bargain was only made known to the defendant shortly before he entered the not guilty plea in court.

13.  Defence counsel further submitted that all or a significant proportion of the drugs seized were for the defendant’s own consumption.  The court indicated to defence counsel that the court was not ready to accept this contention and was willing to conduct a Newton hearing to resolve the issue.  Defence counsel then withdrew the contention of all drugs were for the defendant’s own consumption, but submitted that a significant proportion of the drugs were intended for the defendant’s own consumption.

14.  Defence counsel also said that according to an expert witness’s opinion, the market value of the drugs was $3,979 if they were in powder form and $5,983 if they were in crack form.

15.  She said that in all cautioned statements, the defendant had told the police that the drugs were intended for his own consumption by placing them inside cigarettes.  The urine test conducted 3 days after his arrest confirmed the defendant’s urine sample contained cocaine.  Defence counsel submitted that if the court is satisfied that a significant proportion of the drugs were for the defendant’s own consumption, then sentencing discount should further be given in the region of 10% to 25% of the sentencing starting point.

16.  Following defence counsel’s submission, the court again indicated to defence counsel that the court has reservation to accept this new contention, and upon receipt of legal advice, the defendant elected to proceed to a Newton hearing to resolve the issue and failed.

Discussion

17.  Before sentencing, this court has carefully considered mitigation by defence counsel as well as the mitigation letter submitted by the defendant. 

18.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life. 

19.  For trafficking cocaine, in this case, following the guideline in the case of Lau Tak Ming, the sentencing starting point, as conceded by defence counsel, is 38.22 months’ imprisonment.

20.  The offence is a very serious offence and personal background is seldom a mitigating factor.  Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea, although defence counsel urged this court to afford one-third sentencing discount to the defendant despite he only entered a guilty plea after a trial date was fixed.

21.  The defendant’s explanation was that his previous legal adviser had only visited him briefly before entering plea bargain with the prosecution which failed and the defendant was told of the failed result of the plea bargain on the day shortly before his plea.  The request of the defence counsel is not justified because it does not follow the guidelines as set out in the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. 

22.  In the case of HKSAR v Cheung Tsz Hong [2022] HKCA 1611, Macrae VP said in paragraph 34 of his judgment that,

“34. Moreover, these were not the sort of crimes where the applicant needed legal advice or the Judgment of the Court to know whether he had committed the offences. As Hughes LJ (as Lord Hughes was then)  said in R v Caley (2013)  2 Cr App R (S)  305, at [14]:

‘There is sometimes confusion in argument between: (i)  the first reasonable opportunity for the defendant to indicate his guilt; and (ii)  the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not. There will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide. We do not attempt to define them, and they do not arise in the present appeals. They might however include cases where even if the facts are known there is a need for legal advice as to whether an offence is constituted by them, or cases where a defendant genuinely has no recollection of events. There may be other cases in which a defendant cannot reasonably be expected to make any admission until he and his advisers have seen at least some of the evidence. Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did. If he does so, normally the public benefits to which we have referred will flow.’

This passage was cited with approval by the court in Ngo Van Nam, at [142].”

23.  For these reasons, the court will afford the defendant in this case a sentencing discount of 25%.

24.  Urine test report of the defendant showed positive result for cocaine. For this reason, there is no doubt that the defence knew the court will be satisfied that the defendant was a cocaine user at the material time.

25.  Newton hearing was conducted on the defendant’s contention that a significant proportion of the drugs seized was for his own consumption. The defendant failed as the prosecution had proved beyond reasonable doubt to this court that the defendant did not have a significant proportion of drugs seized for his own consumption for reasons that this court has given in court. Conduct of the Newton hearing was proved to be totally unnecessary.  It also dilutes the degree of remorse shown in the guilty plea of the defendant.

26.  It is said that the defendant, having failed to seek to obtain a heavily discounted sentence on a false basis by confessing to a crime but trying to avoid the full consequence in a Newton hearing, may expect a reduced sentencing discount[1].

27.  In the circumstances, the court now exercise its discretion and give the defendant a sentencing discount of 18% instead of the original 25%[2]. The defendant is therefore sentenced to 31 months and 10 days’ imprisonment.

28.  The defendant himself is a cocaine user.  For this reason, the court is willing to reduce the sentence to 30 months’ imprisonment.

29.  The defendant is therefore sentenced to 30 months’ imprisonment in this case.