HKSAR v. Kwong Tung Fan

DCCC 533/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 533 OF 2017

-------------------------

-------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.At around 1 am on 4 April 2017, the defendant Miss Kwong Tung Fan was seen by the police holding a paper box in Lei Muk Shue Estate, New Territories. Her behaviour aroused the suspicion of the police officers. She was stopped and searched. In the box, the police found a total of 97 small resealable plastic bags containing a total of 22.63 grammes of solid. Subsequent examination by the government chemist confirmed that they contained a total of 21.15 grammes of cocaine. The police also found a small amount of cash, two working telephones and four additional SIM cards.

2.Under caution, the defendant admitted that earlier that evening, she received a call from an unknown male asking her to pick up some perfume from a man in Lei Muk Shue Estate.  She later realized she was in fact going to pick some cocaine.  Nonetheless, she agreed to go on with it because she would be paid a reward of HK$1,000. 

3.The total retail price of the cocaine found is estimated to be around $27,220.50. 

4.The defendant at the time was unemployed and she had no income at all. She agreed that she was delivering those cocaine for another person.  I note that she did not disclose any information about this mysterious man who asked her to do the delivery. 

5.I do not need to labour the point of how serious the offence of trafficking in dangerous drug is.  Suffice it to say that from the existing authorities, the present quantity falls within the 10 to 50 grammes bracket, warranting a term of imprisonment of 5 to 8 years: see the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. 

6.The defendant contended that she was asked by someone to take delivery of the dangerous drugs.  I found such contention highly incredible; apart from the fact that she did not disclose the identity of that mysterious person, the circumstances that she was entrusted with this task again is highly suspicious.  I found also the fact that she was carrying two mobile phones and four additional SIM cards again indicative of the fact that her involvement would be more than she cared to admit. 

7.But I do not consider the suspicious circumstances are aggravating factors.  The fact remains unchanged is that, she had a large quantity of dangerous drugs which she admitted that she would deliver for someone.  On this basis, I do not see any justification for departure from the sentencing guideline.  The quantity of 21.15 grammes of cocaine, in accordance with the existing guideline, warrants a term of imprisonment of 5 years and 9 months, that is, 69 months. 

8.I turn to consider the mitigations put forward by the defendant’s representative.  The defendant is aged 17, born in Hong Kong.  At the time of arrest, she was 16.  She was at Form 2 when she quit school; she had worked as a waitress.  Since 2016, she had been unemployed.  In October 2016, she gave birth to a baby girl.  From her background, it does not seem that there is anything which would justify my departure from the sentencing norm.  

9.I have also considered her young age.  At the time, she was 16.  It was a young age for any person.  Normally, a young offender should be given special considerations and warrant a different sentencing principle.  The general idea is not merely to punish but rather to help that person to be back on the right track.  However, in the case of trafficking in dangerous drugs, the sentencing principle is one of deterrence.  The personal circumstances of the accused normally carry little weight.  It makes sense because, otherwise, people like the defendant would be used as foot soldiers by the traffickers with little consequences. The defendant was young but she knew what she was doing. 

10.In sentencing, I also do bear in mind the adverse influence on her family, in particular her young daughter, but this is something that she should have thought of before embarking on such behaviour.

11.The only relevant mitigation is the fact that she pleaded guilty.  In accordance with the Court of Appeal decisions, I would reduce her sentence by one-third.  Her sentence therefore is reduced to 46 months.  I would urge upon the defendant that she should know that she will be still young even after she has completed her sentence.  There will still be time for her to make the best of the rest of her life and be a good mother and provider for the family.