HKSAR v. YEUNG WAI HEI

DCCC 382/2021

[2022] HKDC 1053

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 382 OF 2021

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REASONS FOR SENTENCE

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1.  On his own plea and admission of the facts, the defendant was found guilty of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  Around 9:12 pm on 1 January 2021, police officers on patrol on board a police vehicle in Hung Hom noticed the driver of a private car (the car)  parked in a petrol station near the junction of Wuhu Street and Gillies Avenue South duck his head upon seeing the police vehicle.  The police vehicle did a U-turn and drove towards the car.  At this juncture, the car drove off after the defendant boarded it.

3.  The police vehicle gave chase and eventually intercepted the car near the junction of Wuhu Street and Chatham Road North.  The driver and the defendant were asked to get out of the car for police enquiry.  The defendant suddenly fled on foot but was eventually chased down by a police officer at no 52 Bulkeley Street and brought back to the spot where the car was intercepted.

4.  The police conducted a search of the defendant and found inside the edge of the defendant’s left trouser leg near his ankle one transparent re-sealable plastic bag (on which the figures “29 24.90” were written)  containing 23.9 grammes of a solid containing 18.2 grammes of cocaine.  The defendant also had HK$3,490 cash and a mobile phone on him.

5.  The defendant was arrested.  Under caution, he said, “Ah Sir, the cocaine was bought for my own consumption.”

6.  The estimated street value of the cocaine seized was about HK$24,097.

The defendant’s background

7.  The defendant has 2 previous convictions, one for trafficking in and one for possession of dangerous drug.  He was sentenced on 15 November 2018 to 47 months’ imprisonment for the former and 2 months for the latter, both sentences were ordered to run concurrently.

8.  He had been released from prison about 2 months prior to the commission of the present offence.

9.  He is now 23 years old.  He was born in Hong Kong and educated here up to form 1 level.  His parents divorced when he was small and he has not had much contact with his mother.  He was raised by his grandparents.  He is single and was living with his father before his arrest.  He was a part-time waiter.

10.  He has been on and off drugs for a number of years.

Mitigation

11.  Defence counsel Ms Maria So points out that the defendant was a mere messenger who had only one bag of drug with him.

12.  She frankly admits that the strongest mitigating factor is the defendant’s guilty plea, which was tendered at the earliest available opportunity.  She says the defendant is very remorseful.

13.  The defendant’s family members have been visiting him regularly and been very supportive of him since his present remand.  The defendant hopes to be able to start his life anew after serving his sentence so that he will be able to take good care of his aging grandparents.

14.  Ms So urges the court not to take too harsh a stance when enhancing the sentence on account of the defendant’s previous convictions.

15.  2 mitigation letters, one from the defendant and one from his father, have been submitted. 

Sentencing considerations

16.  Sentencing guidelines for trafficking in heroin as set out in R v Lau Tak Ming and Ors [1990] 2 HKLR 370 apply to trafficking in cocaine[1]. According to those guidelines, the tariff for trafficking between 10 grammes and 50 grammes of the drug is 5 to 8 years’ imprisonment.

17.  On a purely arithmetical approach, the starting point for trafficking in 18.2 grammes of cocaine should be about 5 years and 7 months’ imprisonment.

18.  In the absence of evidence that the defendant himself was dealing with the drug to others, the court will treat him as a courier, to which the guidelines apply arithmetically[2].

19.  As for enhancement of the sentence for the defendant’s previous convictions, Macrae VP in HKSAR v Har Tsz Yui [2019] HKCA 1336 said,

“15. It is clear that it was open to the judge to enhance the sentence of the appellant because of the repeated nature of his offending in respect of serious offences…

16. …the aggravating feature of a defendant being a repeat offender, whatever the offence, is not susceptible of the arithmetical application of percentage enhancements. Much will depend on the nature and seriousness of the offence, the extent of the defendant’s criminal record and the need for personal and public deterrence.

17. …We can also foresee that an enhancement might be less for the repeat offender with one or two previous similar convictions but greater for the repeat offender with three or four or more previous similar convictions. A long period since a previous similar offence might indicate that a defendant is trying to change his life around and the need for personal and public deterrence correspondingly less: repeated similar offences within a short time of being released from prison might indicate that the defendant is making no effort to change his ways.”

20.  In the present case, the defendant’s record does not look too bad in terms of the number of convictions – he has only two.  However, in terms of the nature of those convicted offences, both convictions were for drug-related offences, with one of them being for the same offence as the one he is now admitting.  What causes the court’s concern is the fact that the present offence was committed only 2 months or so after his discharge from prison in respect of those offences.  In the words of Macrae VP in Har Tsz Yui, this shows that “the defendant is making no effort to change his ways.”

21.  I consider an enhancement of 2 months to be appropriate for the defendant’s previous conviction for trafficking in dangerous drugs.

22.  The notional starting point for the present offence would thus be 5 years and 9 months’ imprisonment. 

23.  As rightly pointed out by his counsel, the defendant’s strongest mitigating factor is his plea of guilty, for which he will be given a one-third discount in sentence.  His sentence after such a discount is one of 46 months’ imprisonment.

24.  I have considered the contents of the 2 mitigation letters. Nothing in those letters constitute sufficient reasons to reduce the sentence.  I can only hope that the defendant will stay true to his remorse and his determination to leave behind his hedonistic ways and to turn his life around for the better.  His father’s plan of having the defendant help out with his snack shop business seems like a good start.

25.  There being no room for further reduction, the defendant is sentenced to 3 years and 10 months’ imprisonment.