HKSAR v. SIN YIU YEUNG

DCCC 644/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 644 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of offence avers that the defendant on 22 May 2014 at the male toilet, Ground Floor, Yiu On Shopping Centre, No 2 Hang Hong Street, Ma On Shan, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in dangerous drug, namely 34.03 grammes of cannabis resin and 24.01 grammes of a solid containing 9.19 grammes of cocaine.

Facts

3.  This is another case of a stop-and-search.  According to the Summary of Facts which was agreed by the defendant, at around 8 pm on 22 May 2014, a team of plainclothes police officers were conducting an anti-crime patrol in the vicinity of Yiu On Estate, Ma On Shan, New Territories.  At around 9:28 pm, the defendant was spotted acting furtively outside the male toilet at the Ground Floor of the Yiu On Shopping Centre in No 2 Hang Hong Street, Ma On Shan.

4.  The police decided to intercept the defendant for search and enquiry. And upon defendant’s request, a body search was conducted on the defendant inside the male toilet.

5.  Upon search, two items were found inside the defendant’s bag:-

(1) black solid of suspected dangerous drugs being wrapped by adhesive tape;

(2) a transparent resealable plastic bag containing white solids of suspected dangerous drugs being wrapped in a piece of tissue paper.

6.  Under caution, the defendant denied the offence and expressed that he did not know why the two items were in his bag. 

7.  In the subsequent video interview, the defendant remained silent. 

8.  At the time of the arrest, the defendant had cash of HK$1,225.50, Renminbi $21, two mobile phones and five SIM cards.

9.  The government chemist has conducted analysis of the suspected dangerous drugs and confirmed that item 1 is five packets, consisting of plastic wrappings, wrapped in a piece of adhesive tape containing a total of 34.03 grammes of cannabis resin; in item 2 is one plastic bag containing 24.01 grammes of a solid containing 9.19 grammes of cocaine.

10.  The estimated street value of both items was about $2,178 and $23,602 respectively.

Criminal record and the background of the defendant

11.  The defendant had one previous record of possession of dangerous drugs in 2012.  He was fined $3,000 in the Magistrate Court in relation to possession of cannabis. 

12.  The defendant is now aged 22, still single.  He resided together with the parents, sister and also girlfriend in Kwun Tong.

13.  The defendant had completed Form 3 education in 2007.  Thereafter he had studied different vocational courses.  He ended up working firstly as a cable technician and later also as a kitchen apprentice.  In the end of 2013, he was employed as an investment consultant by a local investment company earning a monthly income of $15,000.  Each month, he had contributed about $3,500 to the family expenses. 

Mitigation

14.  In mitigation, the defendant’s counsel, Mr Victor Cheung, emphasized to the court that the defendant had pleaded guilty in this case and therefore saving court’s time and is a strong indication of remorse.  The defendant was still very young.  In the past, despite a criminal record in possession of dangerous drugs, he had attended voluntary work and also had made some charitable donations as evidenced by donation receipts which were produced in court. 

15.  Mr Cheung informed the court that the reason why the defendant had committed this serious offence is because his girlfriend who was cohabiting with him was pregnant and they were expecting the newborn baby in January next year.  Because of this unexpected pregnancy, the defendant found himself in great financial difficulties.  In order to earn quick money and under the influence of some dubious characters who were friends of the defendant, for a reward of $2,000, the defendant had promised the others to carry the drugs from Mong Kok to Ma On Shan.

16.  Mr Cheung also submitted to the court some letters of mitigation written by the defendant’s mother, the defendant’s girlfriend and also by the defendant himself.  All these letters spoke of the defendant as a kind-hearted person, a responsible son and also a responsible boyfriend; that he was foolish in committing the offence in order to solve his economic problems; that the defendant is now so remorseful but is willing to shoulder the legal responsibility and consequences.   All these letters of course urged the court to be as lenient as possible and gave the defendant a chance. 

Sentencing considerations

17.  The offence of trafficking in dangerous drug is of course a very serious offence.  Any person who contravenes this serious offence and on conviction is liable to pay the fine of HK$5 million and also to imprisonment for life. 

18.  I have some sympathy for the defendant’s pregnant girlfriend.  The present offence means that the defendant is facing a rather long period of imprisonment and thereby leaving her alone to take care of the newborn baby. However, although the defendant is said to be young, he is not extremely young.  He has been working in the society already for some six and seven years.  He should actually think twice as a responsible man before committing a serious offence like this. 

19.  The Court of Appeal has said many times in past authorities that family circumstances virtually play no part in mitigation in serious crimes such as trafficking in dangerous drugs. 

20.  The present trafficking offence involves two different drugs.  The Court of Appeal had in the past authorities laid down the two approaches as the sentencing approach when the court is called upon to deal with the sentence of trafficking in relation to cocktail drugs.  There is of course the individual approach which is to look at each component of the cocktail or batch and then to sentence by adding up the different sentences relevant to each individual drug.  The combined approach involves the calculations of the applicable sentence for the more or most serious drug in terms of potency, and then to take into account significant quantities of other less serious drugs.

21.  Whichever approach is appropriate depends on the circumstances of the case.  Most importantly, the judge has to sentence the defendant in situation like this fairly, realistically and in a commonsense manner. 

22.  Between the two dangerous drugs involved in this case, no doubt in terms of the potency of the drugs, cocaine is more serious. 

23.  According to the Court of Appeal, the sentencing tariff for trafficking in cocaine is aligned to the guideless for trafficking in heroin which is contained in the case of The Queen v Lau Tak Ming & others [1992] HKLR 370.

24.  According to Lau Tak Ming, up to 10 grammes of heroin will attract a sentencing starting point between 2 to 5 years’ imprisonment.

25.  In relation to the 34.03 grammes of cannabis resin, according to the Court of Appeal decision in Attorney General v Tuen Shui Ming & another AR12/1994, for a quantity of cannabis resin under 2,000 grammes, the sentence can be up to 16 months.

26.  Previously, the Court of Appeal in Attorney General v Chan Chi Ming, Application of Review 19 of 1986, which was later amended by Tuen Shui Ming, said that for a quantity under 500 grammes, the sentence could be as low as 3 months which is entirely within the court’s jurisdiction. 

27.  When I combined the two drugs in question, in light of the sentencing tariff in relation to cannabis resin, I decided that the overall starting point should be 5 years’ imprisonment.

28.  Mr Cheung had relied on the charitable donations of the defendant to establish the good character of the defendant.  Without detracting the value and contribution of those charitable organisations involved which had received the donations by the defendant, I however do not consider that it is appropriate for me to reduce the sentence of the defendant on account of these charitable contributions.  The defendant’s contributions pale into insignificance when I come to consider the gravity and the seriousness of the offence in question.

29.  The defendant pleaded guilty to which he would be entitled to an one-third discount which is the only effective mitigation in this case.

30.  As I said, the starting point is 5 years which is 60 months.   After reducing the sentence by one-third, the defendant shall receive a sentence of 40 months’ imprisonment which is 3 years and 4 months.