HKSAR v. Low Kai Bong

DCCC 653/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 653 OF 2017

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.About 12:10 p.m. on 5 May 2017, PC 14771 (PW1) stopped the defendant for enquiry outside Ground Floor, Kin Hei House, Kin Ming Estate, Tseung Kwan O.

3.Upon search, PW1 found in the defendant's left front trouser pocket a transparent resealable plastic bag containing 50 transparent resealable plastic bags which contained a total of 10.6 grammes of a solid containing 9.86 grammes of cocaine.  Under caution, the defendant admitted that he was helping other(s) to sell drugs because his family had no money.

4.A few minutes later, the defendant's residence on the 37^th Floor of Kin Hei House was searched in his presence.  PC 9780 found packaging paraphernalia including 2 electronic scales, 2 pairs of scissors, a stapler with staples and 30 odd transparent resealable plastic bags.  When cautioned by PW1 again, the defendant admitted that the plastic bags and scales were for packaging the drug found on him.  He claimed that he was merely packaging the drug for others to sell.

5.In his video recorded interview, the defendant claimed that he was responsible for packaging but not selling the cocaine.  He explained that on 1 May 2017, he met an unknown male ("the Male"), who offered him the job of packaging drug for $600 a day.  The defendant admitted that on 3 May 2017, the Male instructed him to pick up a bag of drug from the flowerbed outside Kin Hei House and package it into 100 packets.  He picked up the drug and used the packaging paraphernalia found in his home to complete the task.  When PW1 stopped him, the defendant was about to place 50 packets of the drug on the flowerbed as instructed.  He claimed that it was his 1^st time accepting the job; he did not receive any reward.

Mitigation & Sentence

6.The defendant is now 21 and has a clear record.  Defence counsel Ms. WONG informed me that the defendant had a traumatic experience during his teenage years when his parents went through a lengthy divorce.

7.The defendant was born in a middle class family.  His life was turned upside down in 2011 when his parents began their divorce proceedings, which lasted for 6 years.  The defendant and his younger brother (now aged 13) had to witness numerous occasions of domestic violence and their parents arguing, which were so serious that the Police and social workers were required to intervene.  The suffering and agony continued until the defendant's younger brother tried to commit suicide in 2016.  The defendant's mother was forced to accept unfair terms in the divorce.  She gave up her share of the matrimonial home.  Social workers arranged for her and her 2 sons to move to a public housing unit.  The 3 of them depended on the mother's monthly income of $10,000 working as an office receptionist and the father's monthly contribution of $3,000.

8.Ms. WONG submitted that the defendant is a good person in nature.  His former school principal and teacher both made positive comments about him.  The defendant started to work after completing F.6, but could only earn an unstable income.  Ms. WONG further submitted that the defendant committed his first criminal offence because he was not mature enough to resist the temptation of some quick money.  A bundle of mitigation letters was placed before me; their contents are duly noted.

9.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh young offenders, so that there is a deterrent effect.

10.I accept that as a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders.  On the other hand, in the past few years, I have seen a steady (if not increasing) number of young persons in my court being charged with "drug trafficking".  Many were just like the defendant – persons in their late teens or early 20s being tempted by an alleged opportunity to earn some quick and easy money to ease their financial burden.

11.When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing souls; thus making it difficult for criminals to exploit our youngsters with financial needs or other vulnerabilities.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age. Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  In the present case, the defendant trafficked in 9.86 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 4 years and 11 months.

13.In view of the defendant's age and being a fresh offender, I adopt a starting point of 57 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 38 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 38 months' imprisonment.