HKSAR v. TONG YIN WAI AND ANOTHER

DCCC 1011/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1011 OF 2011

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Reasons for Sentence

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1.  The defendants, two young men aged 19 and 21, pleaded guilty before me to one joint charge of trafficking in a dangerous drug; the drugs involved were 6.34 grammes of cocaine.

2.  On the day of offence, police went to a flat in Shatin with a search warrant.  D2 and another man were seen leaving the flat, police officers stopped them for enquiry; suddenly, D2 shouted ‘police’, an officer immediately broke open the door of the flat.  Inside the flat were D1 and another man, upon seeing the police, D1 picked up some bags containing the drugs in question from the table and ran towards the balcony, but before he could do anything with the drugs, he was subdued by the officers and the drugs were seized from his hand.  A search of the flat was conducted and a total of 51 resealable bags together with an electronic scale were found.  Under caution, D1 admitted that the drugs were cocaine and he bought them in Tsuen Wan and intended to sell them to earn some money.  D2 said under caution that he lived in the flat, it was D1 who brought the drugs there; D1 would give him some cocaine in return for his help in selling the drugs.

3.  D1 has 2 previous one of them relating to drugs while D2 has two drugs related convictions.

4.  The court adjourned the sentence to enable a training centre report to be prepared for D1, and the report has recommended that he be sent to the centre.  Had it not been for the fact that D2 was over the age limit, I would have done the same for him.

5.  In mitigation, counsel for D1 stressed that it was not a sophisticated operation, and his client was not the mastermind.

6.  Counsel for D2 said that D2 had been a drug addict for a number of years, he first started abusing ketamine but later changed to cocaine, his client spent about $2,000 a month on drugs.  It was submitted that it was D1 who dragged D2 into this illicit drugs business by giving him cocaine for his help in the sale of drugs.

7.  Trafficking in dangerous drugs is a serious offence, the appellate courts have always said that even first offenders of young age carry very little weight as mitigating factors.  And there are sentencing guidelines for such offence - trafficking up to 10 grammes of such drugs warrants 2 to 5 years imprisonment.

8.  In addition, there are aggravating features in the present case for they were acting in concert in committing the offence.

9.  As far as D2 is concerned, apart from his guilty plea, there is no other mitigation of substance.  I take 4 years as starting point, reduce it to 32 months to reflect his plea and I see nothing for a further reduction, he is therefore sentenced to a term of 32 months imprisonment.

10.  For D1, in the concluding paragraph of the training centre report, it is said, “having been put on probation as well as having undergone training in the detention centre for his previous offences, he showed no strong determination to turn anew ………….. in view of his weak law-abiding concept and his lack of insight into problem, a longer period of disciplinary training coupled with statutory supervision was ……….. considered essential for defendant to gain a deeper insight into his misdeeds.”

11.  Having carefully considered the contents of the report, I am of the view that he might benefit more if he were sent to the training centre than to prison, for in the centre he may learn a trade which will stand him in good stead in later life after his release.  If at the end of the day he can stay on the straight and narrow, it will too be a benefit to the society at large.  Also in terms of the length of detention, taking into account the usual remission for good behaviour, it may work out more or less the same if he is sent to prison.  For the reasons given above, I follow the recommendation of the report and send D1 to the training centre.