HKSAR v. Fok Yan Ki and Another

DCCC 924/2017

[2018] HKDC 784

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 924 OF 2017

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REASONS FOR SENTENCE

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1.The 1^st defendant (D1) (female) (aged 33 years) and the 2^nd defendant (D2) (male) (aged 34 years) are husband and wife. They were jointly charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

2.The subject matter of the Charge 1 is 4.71 grammes of a solid containing 4.57 grammes of cocaine whilst the subject matter of Charge 2 is 7.75 grammes of a solid containing 7.35 grammes of cocaine.  Both charges happened on the same date on 11 July 2017 and took place in the same or nearby vicinity in Shatin.  In short, both offences were closely connected with each other.

The facts

3.According to the Summary of Facts, at about 8:15 pm on 11 July 2017, two police officers were conducting an anti-narcotic operation in the vicinity of Kong Pui Street, Shatin.  At about 9:10 pm, outside Regal Riverside Hotel, D1 was seen alighting from a private car whilst D2, the husband of D1, was at that time the driver.  At that time, D1 was carrying a shoulder bag. She entered the hotel and wandered at the lobby while talking on the phone and looked around in a furtive manner.  D2 also alighted from the vehicle, and he too looked around in a furtive manner.  A while later, he got back into the vehicle, intending to drive away.

4.The police officers intercepted D1, and upon a body search, they found in D1’s shoulder bag a plastic bag containing a cigarette box which contained one transparent resealable plastic bag containing 23 small transparent resealable plastic bags, each containing white substance suspected to be dangerous drugs (Exhibit 1).  The police also found one electronic scale, a mobile phone and cash of HK$674 in D1’s shoulder bag. 

5.The police immediately arrested D1 for trafficking in a dangerous drug. Under caution, she admitted that she was delivering cocaine in order to earn some money as she was in debt. 

6.At the same time, another police officer intercepted D2 at Kong Pui Street near Yuen Chau Kok Road when D2 attempted to drive away.  A search was conducted on the vehicle and the police found in the door compartment at the vehicle’s driver seat one transparent resealable plastic bag containing white substance suspected to be dangerous drugs (Exhibit 2).  D2 was similarly arrested for trafficking in a dangerous drug.  Under caution, he claimed that he was delivering cocaine to earn some money as he was in debt and needed money for his wedding.

7.In D2’s body, a mobile phone and cash of $740 were found.

8.Exhibit 1 and 2 were later delivered to the government chemist for analysis and they confirmed that both exhibits were indeed cocaine with the quantity as described in both Charge 1 and Charge 2. 

9.When both defendants were back in the police station, they were subsequently cautioned.  During the video-recorded interview, both defendants admitted that the cocaine was actually bought from a male friend, Ar Chiu, on 11 July 2017 at a restaurant at Choi Hung Estate, Kowloon for HK$6,000 in cash.  After they had obtained the cocaine, an old friend of D1, Ar Sa, called her and asked if she had any cocaine for sale, and they delivered Exhibit 1 to the hotel.  For Exhibit 2, D1 has admitted that he gave it to D2 for keeping pending further demands from others.  The electronic scale was to be used for separating the dangerous drugs, and both defendants have said that they were in need of money for their weddings.

10.According to the Summary of Facts, Exhibit 1 and 2 could have been sold at the street value to drug abusers for HK$12,659 in powder form or $15,700 in crack form in July 2017.

Criminal records and background of the defendants

11.D1 has only one criminal record of possession of dangerous drugs.  It was in October 2014 when she was sentenced to a 12 months’ probation in the Magistrate Court.

12.D2 also has a possession of dangerous drugs record.  It was in 2008 for which he was fined $1,500.

13.As said, both defendants are husband and wife.  D1 is a university degree holder.  She graduated from the Hong Kong Polytechnic University in marketing.  Before the offence, D1 had been working as a shop assistant as well as a saleswoman earning a monthly salary of HK$9,500.    

14.For D2, he has only a Form 5 secondary education level.  At the time of arrest, he was working as a goods driver earning a monthly income of HK$17,000. 

15.Both defendants resided together with D2’s parents.

Mitigation

16.In mitigation, Mr Ho, counsel for D1, explained that the reason why D1 and D2 committed the present offence was because of the financial pressure of the wedding banquet arrangement.  They had planned to hold a 30 tables’ banquet in December 2017 although the couple had already been registered as husband and wife since December 2015. 

17.As for D1’s record of possession of dangerous drugs, Mr Ho informed the court that the reason why D1 came to abuse the drugs was because her elder brother passed away a few years ago, and foolishly she had thought that the drugs would relieve the stress and the emotional problems associated with the passing away of her elder brother.  

18.I have asked why it is felt necessary to hold a large wedding banquet as late as about two years after the marriage, and I was told by Mr Ho that it was because the husband, D2, came from a fishermen’s family background and therefore it is their wish or family tradition to hold a large wedding banquet to entertain their friends and family members.  This decision, however, had brought about tremendous financial difficulty to the couple.  They had borrowed a sizeable amount of $200,000 from a financial institution. 

19.Mr Ho also submitted to the court for consideration letters of mitigation written by D1 herself and also from the parents of D1 and her family members.  I am not going to refer to the content of these letters in great detail.  Suffice it to say that D1 told the court that she was deeply remorseful and she was very sorry for letting her family members down.  At the same time, she realised that she must shoulder her responsibility for committing an offence like this and promised to turn a new leaf and asked the court to be as lenient as possible.

20.Mr Leung appearing for D2 basically supported what Mr Ho has said as to the background why the couple resorted to committing crimes in order to solve their financial problems.  Mr Leung told the court that D2 used to work as a salaried lorry driver earning $20,000 per month but just months before the offence, he lost his job and became working for himself as a self-employed lorry driver, and his income was reduced to $17,000 which caused D2 pressure and stress.  D2 was also the breadwinner of the family.  Each month he has to support the parents living with him.  Mr Leung also said that the loan owed to the financial company was very much the reason why the couple had foolishly committed the present offence.

21.Both Mr Ho and Mr Leung have made it clear that they are not relying on self-consumption as further mitigation.  They just asked the court to be as lenient as possible.  I also received from Mr Leung letters written by D2 himself and also from the family members of D2.  I will only say that these letters reveal the remorse from D2 and also sorrow from the parents of D2.  I was asked to exercise mercy and to be as lenient as possible.

Sentencing considerations

22.Trafficking in dangerous drug is of course a very serious offence, with a maximum sentence of life imprisonment and a fine of HK$5 million.  In the District Court, the maximum sentence is one of 7 years’ imprisonment.  Anyone who had committed this serious offence would expect no mercy from the court. The court never accepts economic reasons for committing crimes, and in serious offences such as the present, family circumstances virtually play no part in the mitigation.  The financial pressure suffered or experienced by D1 and D2 in this case would never be accepted as an excuse to commit crimes.  Indeed, I must say that they were only asking trouble for themselves, and the kind of economic pressure is largely unnecessary and were actually self-imposed.

23.The Court of Appeal has already laid down a clear guideline for sentencing trafficking for various types of dangerous drugs.  For sentencing in cocaine, in Attorney General v Rojas [1994] 1 HKC 342, the Court of Appeal had already said that the sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370. 

24.In this case, there are altogether two charges consisting two quantities of dangerous drugs, Exhibit 1 and 2.  Exhibit 1 contains 4.57 grammes of cocaine while Exhibit 2 contains 7.35 grammes of cocaine, making a total of 11.92 grammes in total.  

25.As I said right at the beginning, these two charges were indeed closely connected together.  In fact, according to their admissions, the two exhibits were actually coming from the same batch which they had purchased from another trafficker at the sum of HK$6,000.  In sentencing, I will combine the two quantities into one in fixing the overall narcotic content of the cocaine in this case and I shall order a concurrent sentence.

26.According to Lau Tak Ming (supra), for quantity of dangerous drugs between 10 to 50 grammes, a sentence of 5 to 8 years’ imprisonment will be imposed.  The overall quantity of 11.92 grammes, according to this tariff, attracts a starting point of 5 years’ imprisonment.  In this case, the only effective mitigation is the timely pleas entered by both D1 and D2 for which each of the defendants will receive a full one-third discount.  In the end, each defendant will receive a sentence of 40 months’ imprisonment in respect of each charge.  The sentences on both charges shall run concurrently.