HKSAR v. YEUNG SIU HANG

DCCC 867/2018

[2019] HKDC 930

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 867 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 7.54 grammes of a solid containing 6.98 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by the defendant today.  In summary at 1733 hours on 12 July last year the police searched the defendant outside G/F, No. 55 Chuen Lung Street in Tsuen Wan.   

3.  Upon search the defendant took out a green Prada bag from the right front pocket of his trousers.  Inside the Prada bag the police found a paper cigarette box containing two big plastic bags inside which were thirty-three small re-sealable plastic bags containing the cocaine.  Thirty small bags were inside one big plastic bag and three small bags were inside the other big plastic bag.

4.  The estimated street value of the cocaine was $7,091.68.

5.  Under caution and in a subsequent video recorded interview the defendant said, inter alia, he had just bought the drugs for $2,000 for his own consumption but did not have the habit of taking drugs.  

6.  On a search of the defendant’s home in Tsing Yi nothing was found.

Mitigation

7.  In passing sentence, I have carefully considered the oral and written submissions of Miss Lau including that the defendant, who is single and lives with his parents, is remorseful and determined not to re-offend so he can take good care of his parents, who are in court today to lend support to their son[2]. 

8.  I take into account that the defendant has no previous convictions for trafficking in dangerous drugs and that while on remand he has joined the organ donation registration scheme.

Starting point

9.  The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].   Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment. 

10.  On a purely arithmetical approach a starting point of just over 4 years and 1 month is appropriate for trafficking in 6.98 grammes of cocaine.  I adopt a starting point of 4 years and 1 month imprisonment.

Own use

11.  Although the defendant told the police he was not in the habit of taking drugs, Miss Lau tells the court that the defendant started abusing drugs five years ago and would take drugs every two to three days[5]. 

12.  Under the influence of bad peers, the defendant was induced to deliver cocaine.  The defendant claims that three packets were his reward for agreeing to deliver the cocaine[6]. 

13.  Miss Lau says the three packets were for the defendant’s own consumption and in support relies on the criminal record which shows the defendant has been sentenced to the DATC and the positive result of a urine test taken three days after arrest on admission to Lai Chi Kok. 

14.  The prosecution adopts a neutral stance. 

15.  Taking into account the defendant has convictions for possession of drugs in 2007, 2009, 2011, 2012, 2014 and 2016 and was sent to the DATC in 2010, 2011, 2012 and 2014 I am prepared to accept that three packets, which were separately wrapped, were the defendant’s reward and were for his own consumption. 

16.  In deciding how much weight should be attached to the fact three packets were for the defendant’s own consumption, I have considered the decision in HKSAR v Wong Suet Hau[7], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[8]. 

17.  In Wong Suet Hau the Court of Appeal said that in most cases the difference, if any, will be slight[9].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

18.  I am satisfied the cocaine in the three packets weighing 0.63 gramme is not a significant proportion.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied a reduced starting point of 4 years’ imprisonment is appropriate.

Commission of offences on bail.

19.  The antecedent statement reveals that when the defendant committed the offence he was on police bail for gambling; obtaining property by deception; acting as a member of a triad society and conspiracy to pervert the course of public justice[10].

20.  Commission of offences on bail is an aggravating feature of sentence.  Miss Lau submits the court should not enhance the starting point because the offences for which the defendant was placed on bail are not drug offences and are still under investigation.

21.  Notwithstanding the offences are not drug offences and the offences of obtaining property by deception; acting as a member of a triad society and conspiracy to pervert the course of public justice are still under investigation and have been for over a year, I am satisfied enhancement is appropriate. 

22.  The defendant was placed on bail in January 2018 for the offence of obtaining property by deception.  On 4 July 2018, eight days before the present offence the defendant was placed on bail for acting as a member of a triad society and gambling. On 10 July 2018, two days before the present offence the defendant was placed on bail for conspiracy to pervert the course of public justice.   On 1 August the defendant was convicted and fined $2,000 for the gambling offence. 

23.  In the circumstances I enhance the starting point by 3 months to 4 years and 3 months’ imprisonment. 

24.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 10 months’ imprisonment.