HKSAR v. Kwok Ka-kuen

HCCC 174/2018

[2018] HKCFI 2179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug, personal background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant was intercepted on a street. Upon search of the recycle bag he was holding, another recycle bag containing five bags each containing cocaine was found. The total quantity was 971.6 grammes of a solid containing 875.6 grammes of cocaine.

Under caution, the defendant admitted that he was asked by a man called ‘Ah Chun’ to take them from a house. The defendant then took officers to the house and there, a plastic bag containing 4.58 grammes of a solid containing 5.25 grammes of cocaine was found. For this batch of drugs, the defendant said under caution that the ‘Coke’ was made by him. Inside the house, items which are commonly used as drugs paraphernalia, some had traces of cocaine on them were also found.

The defendant is now 19 years of age. He had completed Form 2 education and had worked as a hair stylist apprentice. He did not have any criminal record before.

In mitigation, learned counsel for the defence, Mr Chan, urged the court to take into account that the defendant pleaded guilty at the earliest opportunity and accept that the defendant is determined to turn over a new leaf. He also asked the court to take into account that the defendant was only 18 years old when he committed the offence, and this was the first time he has committed any offence.

The defence produced letters written by the defendant to the court and to his parents, as well as letter written by his parents to the court. In his letters, the defendant expressed remorse and indicated he has decided to pursue his study while serving the sentence. He also expressed concern for his parents. In the letter of the parents, they blame themselves for failing to give the defendant proper guidance and pleaded leniency on his behalf.

The dangerous drug the defendant trafficked in was cocaine. The total quantity of narcotic was 879.85 grammes. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for the sentencing in R v Lau Tak Ming [1990] 2 HKLR 370, are applicable to cases of trafficking in cocaine.

R v Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal set out further guidelines for cases involving larger quantity. It was held that for cases involving narcotic content of 600 to 1,200 grammes, an imprisonment term of 20 to 23 years’ imprisonment should be considered.

In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff.

I adopt a starting point of 21 years and 3 months. The defendant pleaded guilty before a magistrate. He is entitled to a one-third discount. He was relatively young at the time of the offence, but was already an adult. The offence he committed, though his first time, is very serious in nature. In all the circumstances, I am persuaded to give him a slight further discount of 2 months.

For the reasons I have mentioned, I sentence you to an imprisonment term of 14 years for the charge.