HKSAR v. YIP PAK HIN

DCCC 136/2020

[2020] HKDC 916

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 136 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to summary of facts to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

Summary of Facts

2.  At around 0050 hours on 5 November 2019, police intercepted the defendant who had just alighted from a private vehicle bearing registration number WG1892. 

3.  Upon body search, one “Marlboro” cigarette case containing 22 cigarettes (subsequently confirmed by the Government Chemist to contain 1.5 gramme of a solid containing a total of 1.02 grammes of cocaine) was found inside the left front pocket of the defendant’s trousers. 

4.  The defendant was forthwith arrested for trafficking in a dangerous drug.  Under caution, he admitted possession of the subject cigarettes in question, which he had added a dangerous drug, namely cocaine.  The defendant further admitted that he had trafficked in the dangerous drugs in order to make some quick cash.

5.  On the strength of a search warrant, the vehicle was later searched in the presence of the defendant and a black coloured recyclable bag was placed in the glove compartment of the front passenger seat of the vehicle.  There were altogether 89 small transparent resealable plastic bags containing a total of 20.98 grammes of a solid containing 15.9 grammes of cocaine and 12 “Marlboro” cigarette boxes containing 242 cigarettes containing a total of 17.25 grammes of a solid containing 12.59 gramme of cocaine.

6.  The defendant was further arrested.  Under reminded caution, he admitted that the second lot of dangerous drugs found in the vehicle was also possessed by him for the purpose of unlawful trafficking.

7.  Cash in the sum of HK$26,300 was found in the vehicle.

8.  In a subsequent video recorded interview, under reminded caution, the defendant admitted, inter alia, that:-

(i)  the defendant paid “Ah Keung” HK$20,000 cash for the contraband;

(ii)  “Ah Keung” said he had arranged customers on the defendant’s behalf;

(iii)  he would receive calls from the customer and then to drive the vehicle belonging to his employer company for delivering the dangerous drugs;

(iv)  upon arrival at the destination, the customers would knock on his car door and then they would trade in cash;

(v)  he sold each cigarette containing cocaine for HK$100 and each resealable plastic bag of dangerous drug for $300;

(vi)  he worked as a driver for the registered owner of vehicle, ie Kai Chun Company Limited;

(vii)  he was responsible for driving his boss;

(viii)  cash in the sum of HK$26,300 found and seized by the police from the vehicle were proceeds of his drugs trafficking activities; and

(ix)  he would consume cocaine once a week.

9.  The estimated street value of the dangerous drug forming the subject matter of Charge 1 is approximately HK$1,401.48 whilst the estimated street value of the dangerous drugs forming the subject matter of Charge 2 is approximately $39,145.26.

10.  At all material times, the defendant possessed the dangerous drugs forming the subject matter of Charges 1 and 2 for unlawful trafficking.

Criminal record

11.  The defendant has one previous, not similar criminal record.

Mitigation

12.  The defendant is now aged 27.  He was born on 3 July 1993. 

13.  He received education up to Form 3 in Hong Kong. After quitting school, he was a casual worker at construction sites for two years.  Then he became a driver, earning about $13,000 per month.  He worked for a year and six months before he was arrested. 

14.  He lives with his parents, elder sister in a public housing estate and he monthly contributes $8,000 to his family. 

15.  The defendant does not have a similar conviction in the past. 

16.  The defendant says that he started taking drugs three months before the time of the offence.  He took cocaine once a week.

17.  Defence counsel submitted that the defendant pleaded guilty at the earliest opportunity showing his remorse and was co-operative with police during investigation.  The defendant had promised his family that he would not commit the offence again, and he is asking this court for one-third sentencing discount in view of his guilty plea.

Discussion

18.  The drugs in question is 1.02 grammes of cocaine for the 1st charge and 28.49 grammes of cocaine for the 2nd charge, totalling 29.51 grammes of cocaine.  Street value of the dangerous drugs in the 1st charge is $1,401.48 and that for the 2nd charge is $39,145.26.

19.  For trafficking of cocaine, following the authority of Pedro Nel Rojas [1994] 2 HKCLR 69, and adopting the guidelines in the case of R v Lau Tak Ming [1990] 2 HKLR 370, the approximate sentencing starting point for the 1st charge is 2 years 3 months 20 days’ imprisonment and that for the 2nd charge is 6 years 4 months 20 days’ imprisonment.

20.  The defendant said he is a drug addict, consuming cocaine once a week. 

21.  He has pleaded guilty to the charges and is therefore entitled to full one-third sentencing discount. 

22.  There is, however, no other valid mitigating factor, because, for a serious offence like trafficking in dangerous drug, personal background or committing offences to earn fast money is not a valid mitigating ground.

23.  Accordingly, for the 1st charge, the defendant is sentenced to 18 months and 13 days’ imprisonment and, for the 2nd charge, the defendant is sentenced to 4 years and 2 months 20 days’ imprisonment.

24.  Although the defendant has not pleaded that significant proportion of the drugs are for his own consumption, this court noted that he is himself a drug user, by reason of that, this court is willing to reduce the sentence for the second charge to 4 years and 1 month imprisonment.

25.  Although the defendant is convicted of two trafficking charges in substance, the total amount of cocaine involved in this case is 29.51 grammes, and had he been charged in a single charge, the sentencing starting point would be 6 years 5 months and 15 days’ imprisonment. Again, the defendant is entitled to full one-third sentencing discount due to his guilty plea.  He would therefore be sentenced to 4 years 3 months and 10 days’ imprisonment.

26.  Again, as said, this court is willing to give him some further discount by reason he is a drug abuser and to further reduce his sentence to 4 years 1 month imprisonment.

27.  This court will order that the sentence in the 1st charge shall run wholly concurrent to the sentence in the 2nd charge.

28.  The defendant is therefore sentenced to a total of 4 years and 1 month imprisonment for this case.