HKSAR v. YAU KA LOK AND ANOTHER

DCCC 146/2018

[2018] HKDC 1225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 146 OF 2018

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REASONS FOR SENTENCE

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1.  D1 Yau Ka-lok and D2 Cheng Ka Wai (female) each pleaded guilty before me to a different charge.

2.  D2 pleaded guilty to Charge 1 – the less serious charge of possession of a dangerous drug.  Particulars are that she, on 1 December 2017, outside Flat A, 1^st Floor, Nos 279-281 Reclamation Street, Mong Kok, Kowloon, in Hong Kong, had in her possession a dangerous drug, namely 0.38 gramme of a solid containing 0.29 gramme of cocaine.

3.  D1 pleaded guilty to Charge 2 – the more serious charge of Trafficking in a dangerous drug.  Particulars are that he, on 1 December 2017, at Room No 10, of the same Flat A, unlawfully trafficked in a dangerous drug, namely 8.37 grammes of a solid containing 6.67 grammes of cocaine.

Admitted facts

4.  The facts agreed by D1 and D2 may be summarized as follows.

5.  On 1 December 2017, at about 2137 hours, as D2 was opening the gate of Flat A, 1/F, Nos 279-281 Reclamation Street, from the outside, police intercepted her.  A search of the white tissue in her left hand revealed 2 plastic bags containing a total of 0.38 gramme of a solid containing 0.29 gramme of cocaine in it.

6.  Under arrest and caution, D2 said that the coke was for her self-consumption.

7.  The total street value of the cocaine on D2 was estimated to be $411.16.

8.  At about the same time, police entered the flat and intercepted D1 near Room 10 of the flat.  D1 said that he resided at Room 10 to which the party proceeded for further investigation.

9.  Upon entering Room 10, the police found a female Ms Chan on a bed.  On the bed were also found:-

(a) One plastic bag (Exhibit 4) containing 12 plastic bags containing a total of 2.35 grammes of a solid containing 1.86 grammes of cocaine;

(b) One plastic bag (Exhibit 6) containing 31 plastic bags containing a total of 6.02 grammes of a solid containing 4.81 grammes of cocaine;

(c) One mobile phone box (Exhibit 9) containing one electronic scale and one plastic bag containing 49 plastic bags;

(d) One notebook; and

(e) Four mobile phones.

10.  Exhibits 4, 6 and 9 and the notebook and 4 mobile phones were just left on the bed exposed.

11.  Under arrest and caution for trafficking in a dangerous drug, D1 stated that those were cocaine and were for his self-consumption and unrelated to his girlfriend.

12.  The total street value of the cocaine on the bed was estimated to be $9,056.34.

13.  In a cautioned interview, D2 stated inter alia that:-

(a) The coke was for her self-consumption;

(b) She bought the cocaine from a female for $500 in Tsim Sha Tsui at about 2000 hours on 1 December 2017;

(c) She would consume cocaine every 3 months; the quantity of cocaine seized was enough for her consumption for one time;

(d) She inhaled the cocaine by mixing it with cigarettes;

(e) She did not know D1; and

(f) At the time of arrest, she did not know who opened the gate for her.

14.  In a cautioned VRI, D1 stated inter alia that:-

(a) The seized drug was cocaine and it was for his self-consumption;

(b) He had been a cocaine addict and he inhaled the drug by putting it in cigarettes;

(c) He bought the cocaine for $4,500 from a male Ah Keung whom he became acquainted in a Mong Kok nightclub on 30 November 2017;

(d) He rented Room 10 on 29 November 2017 for a daily rent of $450;

(e) He had known his girlfriend Ms Chan for a month;

(f) He separated the cocaine into small packets, weighing about 0.2 gramme each; it took him around 15 minutes when Ms Chan was sleeping;

(g) He used the electronic scale to measure and the plastic bags to separate the cocaine for easy consumption and carriage;

(h) The notebook was used to record repayment of money from others;

(i) The two Samsung mobile phones were for his personal use;

(j) He did not know D2; and he did not know why the packaging of the drug seized from D2 was similar to that of his drug;

(k) He opened the door of the flat for D2 as he thought D2 was living in the other rooms of the flat; and

(l) He worked for about 5 days a week as a transportation worker.

15.  D1 now admits that he was in possession of the dangerous drug under Charge 2 for the purpose of unlawful trafficking.

Criminal records

16.  The agreed criminal record shows D1 has two previous convictions collected between 2007 and 2010 one of which was similar (Trafficking in dangerous drug in 2007 for which he was sentenced to 15 months’ imprisonment).

17.  The agreed criminal record shows D2 has two previous convictions collected between 2005 and 2007 one of which was similar (Possession of dangerous drug in 2007 for which she was sentenced to a fine).

Antecedents

18.  The agreed antecedents statement shows D1 to be aged 39 (38 at the time of the offence), educated to F5 level, single and unemployed; that he was last discharged in 2008; that he claimed to be a drug addict and to have had a habit of consuming cocaine.

19.  The agreed antecedents statement shows D2 to be aged 32 (31 at the time of the offence), educated to F2 level, single and unemployed; that she was last discharged in 2007; that she has suffered from depression; that she claimed to be a drug addict and to have had a habit of consuming cocaine.

Mitigation

20.  Mr Paul PS Leung of counsel mitigated on behalf of D1.

21.  Mr Dick Lee of counsel mitigated on behalf of D2.

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

D1 Yau Ka Lok

23.  D1 was no longer a drug addict at the time of arrest.  He is single and is a fruit seller at his father’s business earning $20,000 a month.  He is living with his fiancée, his parents and his 4 months’ old son; today they except the baby son, and his friends are in court to provide support.  From time to time, D1 participated in charitable activities eg distribution of rice boxes and fruits provided by his family business (see “Thank you” letter (without English translation) and copy photographs submitted).  D1 also made monetary donations and motivated others to join this event.

24.  D1 had been a drug addict for a few years before this offence.  He mingled with transportation workers in the fruit market in Yau Ma Tei.  He did not take drug at the material time as he had quit the habit for a few months already.  He intended to re-sell the cocaine by re-packaging it to other transportation workers for a profit of $1,000.

25.  He made full confession and was fully co-operative with the police which shows remorse.  His parents are disappointed but still show support and they promise to take care of the baby grandson while D1 is in prison.

26.  The guidelines seem to suggest 4 years’ term after trial.

27.  Two mitigation letters (without English translation) respectively written by D1 and a District Councillor spoke of D1’s remorse and his desire to turn a new leaf in life.

28.  D1 is not relying on self-consumption as a mitigating factor.

29.  Lastly, Mr Leung submitted that D1 pleaded guilty and asks for leniency on behalf of D1 and his family members.

D2 Cheng Ka Wai

30.  D2 is no longer a drug addict although she was one at the time of the offence.

31.  Mr Lee submitted a mitigation letter (without English translation) written by D2, a birth certificate of D2’s baby son, and a medical appointment slip of D2 with the East Kowloon Psychiatric Hospital.

32.  D2 is single but her boyfriend Mr Yeung is in court to provide support. Last month, they had a son.  Since D2 gave birth, she has been taking a rest at home.  The baby boy is still being taken care of in hospital because of this drug-related case.  If D2 was sent to prison, the Social Welfare Department would step in to take care of the baby.  D2 has been visiting the baby daily. D2 has another daughter (6) out of a relationship with an ex-boyfriend.  D2 has been diagnosed with post-natal depression and so went to East Kowloon Psychiatric Hospital for treatment.  D2 contributes $3,000-4,000 to her parents per month the money having come from her boyfriend, a chef apprentice earning about $10,000 a month.

33.  In 2017, D2 and her ex-boyfriend had a dispute on the right to custody of the daughter which caused D2 to be involved with drugs again.

34.  Mr Lee urges the court to consider the guilty plea showing remorse and not to impose a custodial sentence which would prevent D2 from seeing her one-month-old son on a daily basis.

35.  D2’s mitigation letter spoke of her remorse and her desire to take care of the baby son as a mother.

36.  D2 has a history of depression and doctor’s advice is that if she could not see the baby boy, her depression might relapse.

37.  Mr Lee asks the court to be lenient and to impose a suspended sentence and if necessary to call for a probation report while giving bail to D2.

DATC report for D2

38.  A DATC report was obtained for D2 before sentencing.  She was considered unsuitable for admission to DATC because she was no longer a drug dependent.

39.  The report also alluded to the observation that D2 was impressed to be an immature young woman who was weak in self-determination; that she was an easy subject of manipulation.

Further mitigation on behalf of D2 post-report

40.  After the DATC report has been obtained vis-à-vis D2, Mr Lee further submitted that the majority of the report was agreed by D2 save and except the following.

41.  It should be from the East Kowloon Psychiatric Clinic that D2 received psychiatric consultation and the period should be since 2013.  The time in which D2 ceased taking ketamine should be June 2015.  D2 had been frank to disclose all her addiction history and she all along willingly admitted the cocaine in this case was for her own consumption.

42.  Mr Lee added that D2 is now determined to quit drug and that her parents are now aware that she was involved in the present case.

Sentence

43.  I have considered the mitigation submissions made by Mr Paul PS Leung and Mr Dick Lee on behalf of their respective lay clients.

44.  I would first of all make the comment that the cases of D1 and D2 are legally unconnected and should never have been brought in the same proceedings.

45.  For D2’s possession of such a small amount as 0.29 gramme of cocaine under Charge 1, I will adopt a low starting point of 6 months’ imprisonment only.

46.  Charge 2 of Trafficking in a dangerous drug is a serious offence for which a deterrent sentence is called for.

47.  The tariff sentences for trafficking in cocaine are to be aligned with those for trafficking in heroin for weights of pure narcotic up to 600 grammes: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

48.  The tariff sentences for trafficking in heroin are set out in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  For trafficking in up to 10 grammes of the drug, the sentence should be between 2 and 5 years’ imprisonment.

49.  For D1’s trafficking in 6.67 grammes of cocaine, I will adopt a starting point of 4 years’ imprisonment.

50.  Both defendants pleaded guilty in time for which they are each entitled to a 1/3 discount in sentence.  There are no other mitigating factors in either defendant’s case to justify a further discount.

[Defendants, please stand]

51.  The sentence for D1 under Charge 2 is 32 months’ imprisonment.

52.  The sentence for D2 under Charge 1 is 4 months’ imprisonment.  I have considered if it would do D2 more good if the sentence is suspended for the reasons of:-

(a) Allowing her to see her one-month-old son on a daily basis so that her depression stands a lesser chance of relapsing;

(b) That the chance of seeing her son grow up in un unbroken chain might nurture in her the desire to stay away from further trouble with the law; and

(c) The fear of serving more time in prison is a stronger deterrent than actually serving it under the peculiar circumstance of D2.

53.  I concluded it will do D2 more good than if she was to serve the sentence outright under the exceptional circumstances pertaining to her case.

54.  I therefore order that D2’s 4 months’ term to be suspended for a period of 12 months.  What this means in practical terms is that D2 does not need to go to prison now.  However, if she were to commit any further offence punishable by imprisonment within the next 12 months, apart from having to serve the sentence for the new offence, she is also liable to serve with it the 4 months’ imprisonment imposed in this case either in whole or in part.