HKSAR v. SHIU HO YEUNG

DCCC 116/2022

[2023] HKDC 211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 116 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.

Facts

2.  On 25 September 2021 at around 02:17 hours, the defendant was observed to be looking around and acting suspiciously whilst he was in the front passenger seat of a private vehicle parked near Lamppost DE1176A at Po Hong Road, Tseung Kwan O, New Territories. He was intercepted for inquiry.  Upon search, a resealable plastic bag containing 19 smaller resealable plastic bags containing suspected dangerous drugs were found in the waist area of the defendant’s pants. Cash of $22,690 was also found in his handbag. He was arrested for trafficking in dangerous drugs.

3.  Under caution, the defendant admitted he was selling dangerous drugs because he was unemployed but in need of money.

4.  The drug was later found to be 6.00 grammes of cocaine.  Estimated street value of the drug is around $9,675.82.

Criminal Record

5.  The defendant has a clear record.

Mitigation

6.  The defendant was locally born. He is 21 years old, going to 22 on 5 February 2023. He is single and lives with his mother, an elder sister and a younger brother. His parents divorced when he was aged 15.  He received education up to Form 3. Since then, he has been working as a waiter and as an engineering worker.  The family was supported by the defendant and his elder sister who worked as a private tutor.

7.  Due to the pandemic, the defendant lost his job and he was unemployed at the time of arrest.  It was said that he went to the bar and was offered dangerous drugs.  He accepted the same and became a drug addict.

8.  The defendant has frankly admitted the charge in question, saving court’s time and resources. It was said that he was promised $2,000 for selling the drugs and that 2 packets of the drugs seized were reserved for his own consumption. This constituted about 10% of the total drugs seized. Defence counsel submitted that the defendant’s urine test report confirmed that he was a cocaine user.

9.  In the mitigation letter written by the defendant, he said that he is deeply remorseful as to what he had done.  He promises not to reoffend and stay away from bad influence. He has reflected a lot during his remand period.  He promises he would seek help from his pastors who have known him since his childhood.

10.  Defence counsel also submitted to the court mitigation letters from the pastors and as well as the defendant’s mother.

11.  Defence counsel conceded that following the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point in this case, for trafficking 6 grammes of cocaine, is 3 years and 10 months’ imprisonment.

12.  Defence counsel admitted that the 10% of the total drugs seized being used for self-consumption does not form a substantial part of the total drugs seized which, according to the case of HKSAR v Wong Suet Hau [2002] 1 HKRLD 69, the court does not need to consider for a sentencing discount.

13.  However, defence counsel urged this court to consider, having regard to the defendant’s personal circumstances, whether to give him a further discount in the sentencing by exercising the court’s discretion, as allowed and referred to in the case of HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, paragraph 69.

14.  She urged this court to be lenient on the defendant in view of his relatively young age, genuine remorse and clear record.

Discussion

15.  Before sentencing, this court has carefully considered mitigation by defence counsel as well as mitigation letters submitted.

16.  The maximum sentence on conviction of this charge upon indictment is a fine of $5 million and imprisonment for life.  For trafficking of cocaine in this case, following the guideline in the case of Lau Tak Ming, the sentencing starting point is 3 years, 9 months and 18 days’ imprisonment.

17.  The offence is a very serious offence and personal background is seldom a mitigating factor.  The fact that the defendant committed the present offence because he was unemployed and in need of money, or that he needed the money to fund his own drug addiction habit, is not a valid mitigating factor.

18.  Considering the mitigation done on his behalf, the most valid mitigating factor is that of his guilty plea, for which he is entitled to full one-third sentencing discount. His sentence is therefore discounted to 30 months and 12 days’ imprisonment.

19.  Urine test performed on the defendant confirmed that he was a cocaine user.  Defence counsel submitted that 10% of the drugs seized was for the defendant’s own consumption.  Defence counsel also rightly admitted that the same did not constitute significant proportion of drugs referred to in the Wong Suet Hau case. In view of the urine test report, this court is willing to accept that the defendant was a cocaine user and a very small quantity of the drugs seized would be consumed by him.

20.  The mitigation letters showed the defendant’s genuine remorse. Both pastors and his mother support the defendant in rehabilitation.  This court is also willing to accept that he is a person of relatively young age, clear record, and a person with genuine remorse. 

21.  For these reasons, the court is willing to exercise its discretion to further discount the sentence of the defendant by 3 months and 12 days’ imprisonment.

22.  The defendant is therefore sentenced to 2 years and 3 months’ imprisonment.