HKSAR v. HO PAK YIN

DCCC 854/2023

[2024] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant, Mr Ho, has pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to Section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars show that the defendant was unlawfully trafficking in a dangerous drug, namely a quantity of cocaine, the narcotic content of which is 5.79 grammes of that drug which occurred in a taxi on Castle Peak Road.  The defendant has agreed the facts which show the offence occurred in the early hours of 23 March 2023 when a police officer stopped a taxi driving along Castle Peak Road.  Defendant and the taxi driver were ordered to get off the taxi.  A search of the taxi itself found the dangerous drugs in the location where the defendant had been sitting.  The drugs were eventually shown to the defendant, he was cautioned.  He stated straightaway that the cocaine belonged to him.  He got it from an unknown man in Mong Kok.  He was instructed to distribute to two various places for a reward of $5,000.  He had already been to North Point and Tsuen Wan to distribute them, so he gave a full admission to trafficking in dangerous drugs at the scene of the crime. 

3.  After that he was then arrested for that offence.  He eventually said that he trafficked the drugs because the family needed the money.  He had a mobile phone and some $3,000 cash on him.  He admits unlawfully trafficking in the dangerous drugs, the subject of the charge.

4.  As far as his background is concerned, he is now 21 years of age, a young man.  He has two previous convictions that are relevant.  On 24 April 2020, he was convicted of trafficking in a dangerous drug and received 28 months’ imprisonment for that.  Furthermore, on 24 November 2022, he was again convicted, this time for possession of a dangerous drug and received a sentence of 3 months’ imprisonment.  The repetition of the offences is troubling.

5.  As far as his background is concerned, that has been advanced in mitigation.  His mitigation shows he is in fact aged 22, not 21, educated to Form 4 level, has studied for a vocational education course, worked in a fast-food restaurant earning about $18,000 a month.  At the time of his arrest he is both single and unemployed living in a rented unit.  He has a good relationship with his family and notwithstanding that a lot of them are here today to witness his sentencing.

6.  In relation to his previous conviction back in 2020, I am informed that the Judge in that case took into account when sentencing a condition known as ‘Attention-Deficit Hyperactivity Disorder’ on the basis it would make it more difficult for him to serve a sentence of imprisonment for an adult of normal health.  I am not sure what information was before the Judge at that stage.  I certainly have no information besides that which was advanced in mitigation and on that basis it is said in mitigation that the condition is controlled.  The defendant has obviously been in custody since his arrest.  He has taken that opportunity to do some studying.  He has the support of his family.  I am told he is not a drug abuser at this stage.  The defendant acted alone and is remorseful and has written to the court indicating his remorse.

7.  As far as the approach to sentencing is concerned, generally sentencing in offences of trafficking in a dangerous drug are governed by tariff or guideline sentencing.  In respect of the drug cocaine, the same tariff is applicable as the one for heroin and that is governed by the case of R v Lau Tak Ming [1991] 2 HKLR 370 and also the case of AG v Pedro Nel Rojas [1994] 1 HKC 342.  This shows that for a quantity of up to 10 grammes of cocaine narcotic content, the sentence would be between 2 to 5 years’ imprisonment.  The arithmetical calculation, if made in this case, would show a starting point of 45 months’ imprisonment.

8.  The guidelines are of course not referred to as straightjackets, the court has the ability to operate its discretion within the guideline.  Taking into account the comments of the Court of Appeal in the case of HKSAR v Herry Yusuph where the court has said that if an arithmetical calculation is not the appropriate method of sentencing that the court should retain a discretionary approach to sentencing in cases of trafficking in a dangerous drug.

9.  The defendant is in this case relatively young, aged 22.  There is some evidence from the previous court sentencing of a condition of hyperactivity disorder.  I am prepared to take those into account in determining the overall sentence for this defendant which must be one that is fair and just having regard to all the circumstances of the case.

10.  I see no particular reason to depart from the arithmetical calculation of 45 months as a starting point.  I do bear in mind this is the defendant’s second offence within a short space of time.  However, I take into account the fact the defendant has shown remorse, has indicated plea from an early stage and has a hyperactivity disorder.  I will simply add a further 3 months for that aggravating factor.  There are no other aggravating factors to consider.

11.  The defendant’s mitigating factor is his early indication of a plea of guilty.  By my calculation, the starting point for sentence that I will take is one of 48 months’ imprisonment.  I shall reduce that by one-third to take into account the defendant’s plea of guilty which leads to a final sentence of 32 months’ imprisonment.