HKSAR v. LI ZHENYANG

DCCC 1095/2021

[2022] HKDC 852

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1095 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The subject-matter of the charge involves 8.27 grammes of cocaine.

The facts

2.  It is a classic stop and search case when the defendant was found suspicious in a stationary private vehicle around mid-night by the police at a public housing metered carpark at Kwai Chung on 31 July 2021.

3.  The defendant was asked by the police to step outside the vehicle for a body search.  As a result, two metal containers were found inside the centre armrest console of the vehicle.  The first metal container contained 18 plastic packets containing a total of 5.14 grammes of a solid containing 4.87 grammes of cocaine and the second metal container contained 13 plastic packets containing a total of 3.60 grammes of a solid containing 3.40 grammes of cocaine. In total, the amount of drugs seized was 8.74 grammes of solid containing 8.27 grammes of cocaine. The estimated street value of the drugs seized was HK$8,871.10.

4.  Two iPhones and cash in the sum of HK$74,150 were also found on the defendant.

5.  The defendant admitted under caution that the drugs seized were cocaine which someone had passed to him in Kwai Chung earlier and that he was instructed to hand it over to another unknown person in return of a reward.

Background and criminal records

6.  The defendant is now 24 and still single.  He was born in the mainland but received education in Hong Kong.  After dropping out of study in Form 2, he had worked as a cook assistant, construction site worker, logistic worker, and renovation worker.  He was earning over $20,000 before arrest.

7.  He has a clear record.

Mitigation

8.  In mitigation, Mr. Shek, counsel for the defendant, told the court that the defendant came from a grass-root family and his parents are over 50 years old.  He used to contribute $7,000 as household expenses.  Immediately before his arrest, the defendant lived with his girlfriend in a village house in Yuen Long.

9.  Mr. Shek prefaced his mitigation by making clear that the defendant will not claim self-consumption of dangerous drugs as a ground of mitigation.  He stressed that the defendant’s role in the offence was a courier for reward which falls into the least culpable category as defined by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

10.  Mr. Shek further urged the court to exercise its discretion and apart from the usual one-third discount because of his guilty plea, to grant a small discount due to the following mitigating factors:-

(a)  The defendant has a clear record;

(b)  The defendant was co-operative under investigation and admitted to the present offence under caution;

(c)  The defendant only foolishly committed the offence because he was put in great financial hardship by the COVID-19 pandemic. Towards the beginning of 2021, the defendant had lost his job as a renovation worker for 5 months. As a result, he was under immense pressure to support his parents and meet his own household expenses;

(d)  Being a very filial son, the defendant had not stopped his monthly contribution of $7,000 to his parents despite the said hardship;

(e)  The defendant’s remorse can be seen from (1)  his own mitigation letter; and (2)  the mitigation letter of the defendant’s girlfriend;

(f)  While remanded in custody, the defendant has sought the assistance of Deacon Peter Wong of the Catholic Diocese of Hong Kong in reflecting on his misdeeds and in turning over a new leaf in life. (See mitigation letter from Deacon Peter Wong); and

(g)  The defendant has firmly resolved to contribute to society with his honest labour. He has started doing so by donating parts of his remuneration from working in Stanley Prison to charity. (Also see the two official receipts from Po Leung Kuk)

11.  Finally, Mr. Shek prays in aid a District Court case HKSAR v Shit Wai-lun DCCC 435/2011 (dated 5 July 2011)  involving similar quantity of cocaine where the sentencing judge passed a sentence of 32 months’ imprisonment.

Sentencing considerations

12.  Mr. Shek has rightly referred to the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 where the Court of Appeal has said that the sentencing guideline for heroin applies equally to cocaine.  The quantity of drugs in the present case falls within the first band that is up to 10 grammes of narcotics.  According to the tariff laid down in R v Lau Tak Ming [1990] 2 HKLR 370, a sentence between 2 to 5 years shall be imposed after trial.

13.  Adopting an arithmetic approach, the sentence for trafficking in 8.27 grammes of cocaine should be 4 years and 6 months instead of 4 years and 5 months as submitted by Mr. Shek.

14.  As to the actual role and culpability of the defendant in this case, based on his admission to the police under caution, no doubt he was acting as a courier in every sense of the word as he had freely admitted to the police that he was given the quantity of the drugs from a dealer and was just instructed to pass it on to someone later on for a financial reward.

15.  The Court of Appeal has already said in Herry Jane Yusuph (supra.)  that the tariff for trafficking was formulated on the basis that the defendant is a courier or storekeeper unless it can be demonstrated otherwise.  Absent any evidence to support any direct or actual trafficking by the defendant, no enhancement from the tariff to reflect a higher level of culpability is called for in the present case.

16.  Conversely, as to any further reduction from the tariff, despite the numerous grounds which Mr. Shek has sought to rely in his mitigation, I can see no justification to go beyond the one-third discount on account of the defendant’s guilty plea of guilty.  The Court of Appeal has repeatedly stressed that personal circumstances will count for little in serious cases such as drug trafficking, unless they are exceptional.  Despite the numerous mitigating factors formulated by the defence, in my judgment, none of those 7 factors submitted can be regarded as truly exceptional.

17.  Turning to the sentence in Shit Wai-lun (supra.)  as referred to by Mr. Shek in his mitigation, although the nature and the quantity of the narcotics are very similar to the present case, it was not clear to me as to the special reason why the sentencing judge has departed from the tariff and adopted a lower starting point of only 4 years when she sentenced her defendant.  The Court of Appeal in Herry Jane Yusuph (supra.)  has already reminded the judges below the need to explain the decision to departure from the starting point but I cannot discern any valid reason for such a departure in Shit Wai-lun (supra.).  If anything, the defendant in that case seems to deserve an even higher starting point.  First, he has one previous record of possession of dangerous drugs for which he has already been sent to the Drug Addiction Treatment Centre and even more, he also admitted under caution that he purchased the drugs for $10,000 and were intending to sell the drugs at various pubs indicating his role was more akin to actual trafficking which is clearly more serious than a simple courier.

Conclusion

18.  After an overall assessment of the role and culpability of the defendant in this case, I conclude that I should adopt the starting point of 4 years and 6 months (54 months)  according to the tariff without any enhancement or reduction.  Giving the defendant the full credit for his plea of guilty, I shall sentence him to 36 months’ imprisonment.