HKSAR v.

DCCC 461/2022

[2023] HKDC 143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 461 OF 2022

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Conspiracy to traffic in dangerous drugs". The dangerous drug involved is cocaine.

Summary of Facts

2.  On 2 September 2021, the Police arrested the defendant for the present offence at his home.  Upon inspection of his mobile phone, WhatsApp messages about delivering items to Room A22, 15^th Floor, Jing Ho Industrial Building, Nos.78-84 Wang Lung Street, Tsuen Wan ("the Store")  were found.

3.  The Police then escorted the defendant to the Store.  He claimed that he had no means to enter the premises.  Police officers broke into the Store without any search warrant.  Inside the Store, the Police found a total of 138 plastic bags which contained a total of 21.4 grammes of a solid containing 18.33 grammes of cocaine.  Under caution, the defendant admitted at the scene that he was instructed by his boss to look for a place to store dangerous drugs.

4.  In his video recorded interview, the defendant admitted that "Ah B" was his boss, whose phone number is shown in the WhatsApp record.  Someone introduced Ah B to him about 2 years ago, but the defendant has never met Ah B in person.  Ah B asked the defendant to look for a place to store dangerous drugs.  The defendant had done so and Ah B gave him $1,000 as his reward.  The defendant found the address of the Store on the internet.  He has been there 5 to 6 times.  The defendant admitted having taken dangerous drugs from the Store twice and delivered them to others.  He received $500 to $1,000 for each delivery.  The defendant claimed that he had no idea who put the dangerous drugs in the Store.  He was instructed by Ah B to go to Cheung Sha Wan to sign the tenancy agreement for the Store.  A Madam Tse was present when he signed the tenancy agreement but he did not know her.

The tenancy agreement

5.  The tenancy agreement for the Store was signed by a Madam Tse as the tenant on 16 July 2021.  The term of the tenancy was from 23 July 2021 to 22 July 2023.

6.  Mr. Puk (PW2), the property agent who assisted the landlord company in renting out the Store, confirmed that in July 2021, he received a call from a potential tenant about the Store.  On 12 July 2021, Tse and a male ("the Male")  went to the Store.  Tse presented a photocopy of her Hong Kong Identity Card to PW2.  PW2 then checked Tse's ID card to verify her identity.  Afterwards, the Male told Tse that he would be the person renting the Store.  On 16 July 2021, PW2 met Tse and the Male in Tsuen Wan to sign the tenancy agreement.  Notwithstanding Tse being the named tenant, the discussion about the tenancy was mainly between PW2 and the Male, who has also signed on the front page of the tenancy agreement.

Forensic evidence

7.  The Police found 4 cigarette butts in the Store and sent them to the Government Laboratory for examination.  The defendant's DNA was found on them.

Mitigation & Sentence

8.  The defendant is 17 and has a clear record.  Defence counsel Ms. Ho informed me that the defendant was a full-time student residing with his mother and younger brother.  The defendant's father passed away in April 2017 due to cancer.    Almost around the same time, the defendant's mother was diagnosed with cancer and received surgery in May 2017.  As a result, the defendant's mother was unable to work and the family had to depend on social welfare.

9.  In mitigation, Ms. Ho submitted that the defendant committed the present offence in order to earn some quick money to relieve his family financial burden.  His role was minor and he has learned a bitter lesson.  He is aware of the trouble he has caused to his family.  The defendant has been remanded in jail custody for 16 months since his arrest in September 2021.

10.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

11.  Although the defendant is under 21, by virtue of section 109A(1A)  of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  I accept that as a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

12.  When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

13.  The Court of Appeal has laid down clear sentencing guidelines for cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

14.  In the present case, a total of 18.33 grammes of cocaine (packaged in 138 small transparent resealable plastic bags)  were found in the Store.  I will use this quantity as the basis of sentencing.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 7 months' imprisonment.  For ease of calculation, I adopt a starting point of 5 years and 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 44 months.  I will grant an additional discount of 4 months for the defendant's young age, reducing the sentence to 40 months.  I sentence him to 40 months' imprisonment.

15.  A few minutes ago, I have just sentenced the defendant to 40 months' imprisonment for a "trafficking" offence in DCCC 1016/2021.  That offence took place in mid-April 2021.  In other words, the defendant committed the present offence whilst on bail, which is an aggravating factor.

16.  Bearing in mind the totality principle as well as the total quantity of cocaine trafficked by the defendant in both cases[1], I consider a global starting point of 7 years' imprisonment appropriate.  With the discount for the timely guilty pleas and young age, the overall sentence for both cases is reduced to 50 months.  I will add 2 months for committing the present offence whilst on bail.  Hence, I order 12 months in the present case to run consecutive to the sentence in DCCC 1016/2021.  Thus, the total prison term for the defendant in both cases is 52 months.