HKSAR v. WU KA HIN

DCCC 321/2021

[2022] HKDC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 321 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The subject-matter of the charge involves 3.84 grammes of cocaine.

The facts

2.  This is a straightforward stop and search case.  At around 5:55 pm on 24 December 2020, a team of plain clothes police officers were conducting an anti-narcotics operation near the bus stop outside Mayfair Gardens, Nos 2-16 Sai Shan Road, Tsing Yi at New Territories.  They noticed a taxi stopping at the bus stop and the defendant, who was sitting at the rear passenger seat, kept looking around.

3.  Feeling suspicious, the police officers went up to intercept the taxi and revealed their police identities.  Upon search of the defendant, one transparent resealable plastic bag containing 0.64 grammes of a solid containing 0.59 grammes of cocaine (P1)  was found in the defendant’s left hand, while one large transparent resealable plastic bag containing 25 smaller transparent resealable plastic bags containing a total of 3.63 grammes of a solid containing 3.25 grammes of cocaine (P2)  was found tucked inside the defendant’s left sock.

4.  The defendant was arrested and under caution he explained that the drugs were for his self-consumption.  However, a house search of the defendant at a public housing unit at Choi Fai Estate in Ngau Chi Wan was conducted with no drugs-taking paraphernalia found.

5.  Upon further search at Tsing Yi Police Station on 24 December 2020 at 9.30 pm, the following items were also found on the defendant:-

(P4)  Cash HK$1,710.00;

(P5)  One mobile phone in gold colour (iPhone with sim card slot);

(P6)  One mobile phone SIM Card, separated from P5;

(P7)  One mobile phone in gold colour, (iPhone with sim card slot);

(P8)  One mobile phone SIM Card, separated from P7;

(P9)  One mobile phone with brand Samsung in pink colour with two card slots;

(P10)  One mobile phone SIM Card, separated from P9;

(P11)  One memory card with brand Nokia, separated from P9.

6.  The Government Chemist subsequently confirmed the narcotic content of the drugs seized.  The total drugs seized was 4.27 grammes of a solid containing 3.84 grammes of cocaine with an estimated street value of HK$8,540.

Background and criminal records

7.  The defendant is 22 years old.  He was born in Hong Kong and he received education up to Form 1 level.  From 2014 to 2018, he has a total of five criminal records including “criminal damage”, “indecent assault”, “wounding” and a record of “possession of dangerous drugs”.  According to the antecedent statement, the defendant was last convicted for “wounding” in December 2018 and was recalled to the Drug Addiction Treatment Centre (DATC)  between December 2019 and April 2020.

Mitigations

8.  Mr. Woon, counsel for the defendant, told the court that the defendant has an elder sister who is 32 years old, working as an assistant in her mother’s laundry shop.  Defendant’s father is aged 60, unemployed, relies on CSSA, while the mother is approximately aged 50, runs a laundry shop.  The parents are currently separated.  The defendant was unemployed at the time of the offence as after he was discharged from the DATC, he could not find any job so he also relied on CSSA for his daily expenses.

9.  Mr. Woon explained that the defendant committed the offence because he was unemployed at the time and wanted to earn some quick cash therefore when he was asked by an acquaintance, nicknamed “Ah Pau” to help him to deliver the drugs seized that day for a financial reward of $1,000, he immaturely and foolishly agreed.

10.  In mitigation, Mr. Woon asked for a lenient sentence because the defendant pleaded guilty and he has expressed genuine remorse.  Also, the defendant was not the mastermind in this case and he was just a courier expecting to receive a low monetary reward.  Mr. Woon also prayed in aid the young age of the defendant and he invited the court to place little or no weight on his previous records which were not similar to the present offence.

11.  Lastly, the defence had submitted letters of mitigation written by the defendant, his father and his mother.  The defendant has shown regrets and remorse in his letter and he promised not to re-offend in the future.  The parents asked for leniency for their son and they all promised that they will do their best to assist him so that he can reform and becomes a useful person after serving his sentence.

Sentencing considerations

12.  Trafficking in a dangerous drug is a very serious offence and those involved with trafficking in dangerous drugs should know that the maximum sentence is life imprisonment and a fine of HK$5,000,000.  Those who are convicted of trafficking in dangerous drugs would expect no mercy from the court.

13.  The Court of Appeal in Hong Kong have already said that general speaking, family circumstances is not to be accepted as mitigation for a serious offence like this.  For a long time, the court has said repeatedly that it would not accept economic reasons for committing crimes as serious as the present.  The defendant is already 21 years old at the time of the offence with numerous criminal records.  The fact that he was not the mastermind of the offence only means that his sentence would not be further enhanced but it would not assist him to receive any further reduction of sentence.  The only effective mitigation is therefore his timely plea, for which he would be given a full one-third discount from the sentence.

14.  The Court of Appeal has held in AG v Rojas (1994)  1 HKC 342 that sentencing for trafficking in cocaine is aligned to the guidelines of trafficking in heroin as published in The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370. According to the tariff, up to 10 grammes of cocaine, the starting point would be 2 to 5 years.

15.  The total quantity of cocaine in this case is in a total of 3.84 grammes.  According to the tariff stated, the starting point should be 3 years and 2 months.  After the one-third discount, I shall pass a sentence of 25 months accordingly.

16.  This offence was committed only 8 months after the defendant was discharged from the DATC.  Obviously, he did not learn the lesson even after a period of detention and treasure the opportunity to lead a drug-free life.  The defendant should know that his promise to his parents and to the court would mean nothing without his determination to turn over a new leaf and any further re-offending of this serious offence will only be visited with heavy sentence by the court with enhancement on account of his previous similar records.