HKSAR v. YUE SZE HUNG

DCCC 187/2022

[2022] HKDC 1168

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to a charge of trafficking in dangerous drugs. The facts he admitted can be summarised as follows. At around 4 am on 11 May 2021, police officers on board a vehicle spotted a private car, which was parked opposite Kwai Shing Circuit in Kwai Chung. The defendant was sitting in the front passenger seat while another person called Chan Wai Chung was sitting in the driver’s seat. Police officers intercepted them and they searched the vehicle.

2.  Police found in a closed compartment in front of the gear stick one plastic bag containing 31 plastic bags containing substances (Exhibit 1).  In the storage slot of the nearside front door was also found one cigarette box containing two plastic bags containing substances (Exhibit 2). 

3.  Upon enquiry, the defendant pointed at Chan Wai Chung and said that ‘Wai Chai’ drove him over to sell these “crack” to other people.  The defendant was then arrested for trafficking in dangerous drugs. 

4.  Under caution, he said that ‘Ah Wai’ drove him over to distribute these crack cocaine and there were two bags of ‘K Chai’ in the cigarette box as well.  He pleaded for a chance. 

5.  At the time of the arrest, the defendant was in possession of cash in a total sum of $18,130 and two mobile phones. 

6.  The government chemist subsequently confirmed Exhibit 1 contained a total of 9.96 grammes of solids containing 8.95 grammes of cocaine, and Exhibit 2 contained a total of 0.99 grammes of solids containing 0.83 grammes of ketamine. 

7.  The estimated street values of cocaine and ketamine involved in this case were about $13,000 and $600 respectively. 

8.  In court, the defendant admitted he possessed the said dangerous drugs for unlawful trafficking. 

9.  The defendant has a clear record.  In his written and oral mitigation submissions, Mr Leung, counsel for the defendant, tells the court that the defendant is single.  At the time of the offence, he was 18 years old and he had just turned 20.  He received education up to Form 3.  He was born in mainland.  He came to live in Hong Kong when he was only 3 years old.  However, his parents had separated. He only lived with his paternal grandmother, father and sister.  He has never lived with his mother.  The defendant could only see his mother around twice a week.  He felt abandoned.  The defendant’s father is now 73 years old, who is a retired chef.  The defendant’s mother is around 62 years old working as a security guard.  They are in court to support the defendant.  They regret for failing to give parental guidance to the defendant. 

10.  When the defendant was 17 years old, he started working as an apprentice to service and repair lifts.  In late 2020, he changed to work as a casual delivery worker. In May last year, he was offered a job by a person he acquainted with at the basketball pitch.  He was offered a reward of $2,000 a day to deliver drugs as a courier and to accompany the driver.  It is claimed that at the time of the offence, the defendant had never delivered drugs previously. 

11.  Mr Leung submits that the defendant’s response under arrest was consistent with a young person who was inexperienced, naïve, childish and scared.  Without any prompting, he told the police that there were two other bags of ketamine in the car.  It is submitted that the defendant was clearly not the mastermind.  He was a small potato being used as a courier. 

12.  Counsel handed up mitigation letters written by the defendant himself and his parents.  They all plead for leniency from the court.  I have considered the contents of all these letters. 

13.  Defence counsel accepts that the starting point for the amount of cocaine in this case would be around 4 years and 8 months’ imprisonment.  He asks the court to ignore the relatively small amount of ketamine.  It is submitted that even if the court chooses to take into account the amount of ketamine, only 1 month’s imprisonment should be added to the starting point. 

14.  Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal laid down sentencing guidelines in AG v Rojas and Lau Tak Ming for trafficking in cocaine.  The starting point after trial, where the quantity of narcotics is up to 10 grammes, is within the range of 2 to 5 years’ imprisonment.  In this case, the total weight of cocaine trafficked by the defendant was 8.95 grammes.  As a matter of mathematical calculation, the starting point is imprisonment for 4 years and 8 months. 

15.  As a matter of principle, the amount of the ketamine in this case, namely 0.83 grammes, was not so small that it should be negligible in the calculation of the sentence in this case.  But I agree that the quantity of the ketamine will only add 1 month’s imprisonment to the starting point, adopting cocaine as the base drug for calculation of sentence.  Having considered all the submissions of counsel and all the circumstances in this case, I see no option of sentence other than an immediate prison term. 

16.  I accept that the defendant was only a courier.  His responses at the time of arrest showed that he was inexperienced in the illicit trade of trafficking of dangerous drug. His accusation against the driver under arrest, though not pleaded as assistance to authorities, can be viewed as his genuine remorse and cooperative attitude with the police. 

17.  He was only 18 at the time of the offence.  Though not falling within the category of extreme youth to be entitled to a special consideration, the defendant was still relatively young, which I will take into consideration in assessing the overall starting point.  I also take into account that he is a person of previous good character. 

18.  In all the circumstances of this case, I will adopt 4½ years’ imprisonment as the starting point.  For his plea of guilty, I will give the defendant one-third discount.  I am afraid that there cannot be further discount to the defendant.

19.  For the reasons given, the defendant is sentenced to 3 years’ imprisonment.