HKSAR v. KWOK HO YEUNG

DCCC 168/2022

[2023] HKDC 778

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 168 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

Facts

2.  According to the defendant’s travel index record, he departed from Hong Kong for the mainland via the Shenzhen Bay Control Point, New Territories, at around 7:17 p.m. on 20 September 2021.

3.  When the defendant was inside the Customs Departure Hall of the Control Point, he was intercepted by Custom Officer 1591 (“PW1”)  for customs clearance.  He was escorted by PW1 and Customs Officer 17387 (“PW2”)  to a room for a body search to be conducted on him.

4.  During the search, a blue bag (“the Blue Bag”)  was found on the right side of the defendant’s waist underneath his underpants.  Inside the Blue Bag, there were two plastic “zip-lock” bags with suspected dangerous drugs inside each of the bags. One of these two plastic bags was with markings and the other one was with a red line. 

5.  PW2 then arrested and cautioned the defendant.  Under caution, the defendant said that he had the suspected dangerous drugs for his own consumption. 

6.  Upon further search of the plastic bag with a red line, another two plastic “zip-lock” bags containing suspected dangerous drugs were found.

7.  These 4 plastic bags of suspected dangerous drugs were subsequently examined by a government chemist who confirmed that they contained a total of 45.5 grammes of a solid containing 38.6 grammes of cocaine (“the Drugs”).  The estimated street value of the Drugs was about HK$46,182.50.

8.  At the material times, the defendant had also with him a mobile phone, and cash in the sum of HK$183 and RMB￥324.

9.  In a subsequent video-recorded interview, the defendant said that he worked as a driver and earned about HK$15,000 to $25,000 a month.  He claimed that he had a drug-taking habit, and that the Drugs were all for his own consumption.  He said that he asked his friend “Ah Shui” to obtain the Drugs for him, and that he picked up the Drugs on the night of the 19^th and paid HK$30,000 for the Drugs.  He admitted that he brought the Drugs with him when he was travelling to Shenzhen.  He said that the Drugs were for his consumption when he had to undergo quarantine in a hotel for 14 days.

10.  The defendant admitted that he had trafficked in the Drugs by way of exporting.

Criminal record

11.  The defendant had 3 previous convictions involving a total of 4 offences between October 2011 and September 2014.  None of his prior convictions was related to dangerous drugs.

Personal and family background

12.  The defendant is now 26 years old.  He was born in Hong Kong on 21 February 1997.  He received education up to secondary six.  Prior to his remand, he worked as a private car driver, and earned between HK$15,000 and HK$25,000 a month.

13.  The defendant is married.  Prior to his remand, he lived with his wife, a daughter aged 3, and his parents.  His father and mother are now aged 67 and 63 respectively.

Mitigation

14.  Miss Ho, Counsel for the defendant, informed this Court that the defendant became a drug abuser in 2014.  Between 22 May 2015 and 21 November 2015, the defendant received residential drug treatment and rehabilitation service due to his probation order in Caritas Wong Yiu Nam Centre.  He however resumed taking drugs thereafter regularly until the time of his arrest when he consumed on average 4 to 6 grammes of cocaine a day.  Miss Ho produced the defendant’s urine test report dated 8^th November 2021 to prove that the defendant was in fact a cocaine abuser. 

15.  Miss Ho stressed that the Drugs were all for the defendant’s own consumption.  She submitted that the defendant was a heavy abuser of cocaine, and that the Drugs would last him for 6 to 9 days.  She accepted that the sentencing guideline laid down by the Court of Appeal for trafficking in cocaine was applicable, but referred to a number of authorities[1] to submit that the starting point so arrived at by applying a strict mathematical approach should be lowered by 25% to account for the fact that all the drugs were for the defendant’s own use.

16.  According to Miss Ho, the defendant is no longer a drug dependent and is determined to remain drug free upon his release since he has learned a very bitter lesson during his remand in custody.  He hopes that he can reunite with his wife and daughter as soon as possible, and promises to lead a law abiding life thereafter.

17.  Miss Ho submitted that the defendant was entitled to the full one-third discount because of his guilty plea.  She also produced a mitigation letter written by the defendant’s parents.

The prosecution’s stance

18.  Miss Lai, Public Prosecutor, submitted that the prosecution did not accept that the whole or a significant proportion of the Drugs were for the defendant’s own consumption. Miss Lai submitted that the defendant could not have used 4 to 6 grammes of cocaine per day because the average daily consumption of a cocaine addict was only 0.2 grammes according to the case of HKSAR v Cheung Ho Kit[2]. She further submitted that the defendant could not have the financial means to support the drug addiction as alleged in his mitigation.  Miss Ho further pointed out that no paraphernalia for consuming drugs were found on the defendant at the time of his arrest.

Newton Hearing

19.  After taking instructions from the defendant, Miss Ho informed this Court that the defendant did not wish to give evidence on the matters raised in his mitigation.

Further mitigation

20.  Miss Ho submitted that the defendant consumed cocaine through cigarette-smoking, and that the defendant had with him 214 sticks of cigarettes at the time of his arrest (which was confirmed by the prosecution).  Miss Ho further submitted that the court might accept that the defendant had the Drugs for his own use by taking into account his drug addiction, the explanation he gave at the time of his arrest, and his financial abilities to support his addiction.

Reasons for sentence

21.  Trafficking in dangerous drugs has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of dangerous drugs being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option should not be employed.

22.  In the present case, despite the defendant’s guilty plea and the mitigation advanced on his behalf, there is no justification for not imposing a prison sentence.  In fact, Miss Ho only asked for a term of imprisonment as lenient as possible.

23.  As far as the quantum of the sentence is concerned, the Court of Appeal decided in Attorney General v Pedro Nel Rojas[3] that the sentencing tariff for trafficking in heroin hydrochloride as set out in The Queen v Lau Tak Ming[4] was applicable to trafficking in cocaine.  According to these authorities, the appropriate sentence for trafficking between 10 and 50 grammes of cocaine is between 5 and 8 years.

24.  In the present case, the defendant trafficked in 38.6 grammes of cocaine.  As a matter of pure mathematic calculation according to the guideline, the appropriate starting point of the sentence is imprisonment for 85.74 months.  I shall call this the basic starting point.

25.  It is clear from the authorities submitted by Miss Ho that if all or part of the Drugs were for the defendant’s own consumption, the basic starting point can be lowered by 10% to 25%, depending on the circumstances of the case.  The authorities also show that the basic starting point will not be reduced unless a significant proportion of the drugs was to be used by the defendant himself.

26.  On the basis of the defendant’s urine test report, I accept that the defendant was a cocaine abuser at the time of his arrest. 

27.  There is however no evidence from the defendant to substantiate the quantity of cocaine he would consume each day to satisfy his addiction.  On the other hand, the case of Cheung Ho Kit supports the proposition that a cocaine abuser consumed on average only 0.2 grammes of cocaine a day, and this average daily consumption rate was based on the expert evidence agreed by the parties in that case. 

28.  The defendant alleged that he consumed 4 to 6 grammes of cocaine a day, which was 20 or 30 times of the agreed consumption rate in Cheung Ho Kit.  In the absence of any evidence from the defendant or any other sources, the defendant’s allegation is not accepted.

29.  Furthermore, it is clear that the defendant could not have the financial means to support his drug addiction as he alleged.  In mitigation, the defendant claimed that the Drugs would last him for 6 to 9 days.  On the other hand, according to his admission made during the video-recorded interview, he paid HK$30,000 for the Drugs, which was already a discounted price from the estimated street value of the Drugs.  It means that the defendant had to spend at least HK$90,000 a month to satisfy his cocaine addiction, but his monthly income was between HK$15,000 and $25,000 only, not to mention that he had to spend part of his income to support his wife and young daughter financially.

30.  For these reasons, I reject the allegation that the defendant had all the Drugs for his own consumption.

31.  On the other hand, I do take into account the fact that the defendant was a cocaine abuser at the time of his arrest.  I also accept that he had to go through 14 days’ quarantine in Shenzhen after leaving Hong Kong, which means that he had no chance of disposing the Drugs to others immediately after leaving Hong Kong, and that he would use some of the Drugs to satisfy his addiction during his quarantine stay.  It is also clear that he had the means to consume cocaine during quarantine since he had with him more than 200 sticks of cigarettes.

32.  I am also prepared to sentence the defendant on the basis that he was a heavy cocaine abuser and assume that he would consume up to one gramme of cocaine a day. This assumption is most favourable to the defendant because one gramme of cocaine a day is already 5 times the quantity that an average cocaine abuser would consume (i.e. 0.2 gramme a day)  as stated in Cheung Ho Kit. 

33.  It follows that I shall sentence the defendant on the basis that he would consume 14 grammes of the Drugs himself as he had to go through quarantine for 14 days.

34.  If the defendant trafficked in 24.6 (38.6 – 14)  grammes of cocaine, and applying the sentencing guideline on a purely mathematical basis, the starting point would be imprisonment for 73.14 months.  Of course, the defendant should also be punished for possession of 14 grammes of cocaine for his own use.  In other words, the proper starting point of the imprisonment term to be imposed on the defendant must be between 73.14 months and 85.74 months (the basic staring point).

35.  Taking all these matters into account, I shall adjust the basic starting point downward to imprisonment for 75 months, which was a reduction of the basic starting point by about 12.5%.

36.  Although the defendant has a criminal record, he has not been convicted of trafficking in dangerous drugs before.  I shall therefore ignore his criminal record.  In my view, there is no aggravating factor that may increase his sentence.

37.  As far as mitigation is concerned, despite the plea for leniency from Miss Ho and the defendant’s parents, the only effective mitigating factor is the defendant’s timely guilty plea.  The defendant is entitled to the full one-third discount of his sentence.  Other than that, there is no ground to reduce his sentence further.

38.  For these reasons, the defendant is sentenced to imprisonment for 50 months.