HKSAR v. NG MAN KI

DCCC 243/2019

[2019] HKDC 1539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 243 OF 2019

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REASONS FOR SENTENCE

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

Summary of Facts

2.  About 8:30 p.m. on 30 December 2018, PCs 20443 and 21152 stopped the defendant for enquiry near the junction of Ma Tau Kok Road and Pau Chung Street in Kowloon.

3.  The defendant was found having his left hand inserted in his left jacket pocket.  When he took out his left hand, he was found holding 1 plastic bag which contained 24.1 grammes of a solid containing 15.8 grammes of cocaine.  He also had 2 mobile phones with him, but no cash was found on him.

4.  Under caution, the defendant admitted that the cocaine was for his own consumption.  His home in Kowloon City was searched; nothing suspicious was found.

5.  The defendant now admits that he possessed the cocaine found on him for the purpose of unlawful trafficking.

Mitigation & Sentence

6.  The defendant is almost 23 and single.  He has 3 conviction records, which included 1 "simple possession" offence.  For that offence, he was given a 12-month Probation Order in June 2018.  He committed the present offence whilst on probation, but the Probation Order is now expired.

7.  Defence solicitor Mr. Tang informed me that prior to his arrest, the defendant worked as a waiter in a bar earning about $20,000 per month.  He is the only child in his family.  Mr. Tang submitted that the defendant plans to complete secondary school and to receive vocational training so that he can lead a normal life after serving his sentence.  Regarding the drug found on the defendant, Mr. Tang explained that the defendant intended to share it with his friends only; he was not a courier or a seller.  Mr. Tang also confirmed that the defendant makes no claim for self-consumption.

8.  A bundle of mitigation letters was placed before me; their contents are duly noted.  In particular, the defendant's former employer speaks favourably of him, commenting that he has a strong sense of duty.

9.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh young offenders, so that there is a deterrent effect.

10.  I accept that as a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders.  On the other hand, in the past few years, I have seen a steady (if not increasing) number of young persons in my court being charged with "drug trafficking".  Many 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 also make it clear that young age is hardly a mitigating factor in respect of "drug trafficking".

11.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in 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.  In the present case, the defendant trafficked in 15.8 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 5 months.

12.  In view of the defendant's age and being a fresh offender[1], I adopt a starting point of 63 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 42 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 42 months' imprisonment.