HKSAR v. Tong Kwok Yin and Another

DCCC 126/2018

[2018] HKDC 1247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 126 OF 2018

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Reasons for Sentence – D1

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1.Originally, D1 and D2 were jointly charged with one count of trafficking in a dangerous drug and D2 was additionally charged with one count of possessing an identity card relating to another person. D1 pleaded guilty to Charge 1 and the trial against D2 proceeded. D2 pleaded not guilty to the charge of trafficking but guilty to the second charge.

2.Upon reviewing the evidence, the prosecution decided to offer no evidence against D2 in respect of Charge 1, and accordingly, I acquitted D2 of Charge 1.  In light of the mitigation put forward by counsel for D2 and his suggestion to ask the court to call for a probation report, I will accede to his request and adjourn the sentence of D2 to 5 October 2018 at 10 am.  I call for a probation report and allow D2 to be on bail on the same terms.

The prosecution’s case in respect of Charge 1 against D1

3.At about 6:30 pm on 28 July 2017, D1 and D2 were spotted by police officers walking together outside Block 5, Po Tin Estate in Tuen Mun.  Upon being approached by the officers, both D1 and D2 immediately split up and walked in different directions.  They were intercepted.

4.Inside the bag carried by D1, the police found the following items: 

(1) one transparent resealable plastic bag containing 49 plastic bags containing 9.68 grammes of a solid containing 8.89 grammes of cocaine (exhibit P1);

(2) one transparent resealable plastic bag containing one plastic bag containing 54 bags containing 10.59 grammes of a solid containing 9.79 grammes of cocaine (exhibit P2);

(3) one transparent resealable plastic bag containing 50 plastic bags containing 8.49 grammes of a solid containing 7.79 grammes of cocaine (exhibit P3);

(4) one cheque of the Hang Seng Bank for the sum of $7,000 payable to another person;

(5) one cheque of the Hang Seng Bank for the sum of $11,600 with no payee;

(6) one cheque of the Bank of China for the sum of $4,000 with no payee;

(7) one resident card of Chelsea Heights in the name of another person;

(8) one HSBC bank card in the name of another person; and

(9) one Hong Kong Jockey Club betting card in the name of Wong Tik-wai.

5.The police officer also found one mobile phone and cash in the sum of $258-odd on D1.

6.Upon chemical analysis, the exhibits P1 to P3 contained a total of 28.76 grammes of a solid containing 26.47 grammes of cocaine, with an estimated street value of about $25,900-odd.

7.Under caution, D1 said he believed P1 to P3 are cocaine.  D1 was given the bag by another person shortly before his arrest.

8.In the video recorded interview in the presence of his father, D1 made further admissions as follows:

(1) he was a student of a secondary school;

(2) he knew the drugs seized were cocaine;

(3) someone gave him the bag containing P1 to P3 at the taxi stand in Po Tin Estate;

(4) the bag has two pockets, with the drugs placed in the inner pocket of the bag.

Mitigation

9.D1 is now aged 16.  His parents divorced in 2010.  Both D1’s parents and D1’s social workers are in court today to support D1.

10.Counsel for D1 submitted a number of mitigation letters, including one from D1, one each from D1’s parents, one from the Salvation Army School Services, one from the dean of discipline of D1’s former school, and one from D1’s school principal. 

11.Also, counsel also submitted the assessment report of the Education Bureau when D1 was 7 years old in 2009.  At that time, D1 was assessed to be a case of specific learning difficulties in reading and writing.  There are some other awards and certificates attached too.

12.Counsel said D1 is deeply remorseful.  It was submitted that the bag in which the drugs were found in fact was given to him by D2 at the material time.  D1 did not receive any payments or benefits from anybody.  But D1 did not provide further assistance to the police.  Counsel suggests the court to call for certain reports.

Sentence

13.D1 is facing a very serious offence and, upon his plea, is convicted of the first charge of trafficking in cocaine.  D1 is aged 16.  He emigrated to Hong Kong in 2003.  He was a Form 1 student.  He had received a superintendent caution back in July 2013 for the offence of theft, but unfortunately he did not treasure the chance to reform himself.  In June 2017, he was bound over for the offence of common assault for a period of 12 months.  That means D1 committed the present offence while he was under the binding-over order.

14.Youth can never be a mitigating factor when it comes to drugs trafficking.  Although section 109A of CPO specifically requires the court to call for reports before sentencing a convicted person under 21 to prison, the offence of trafficking in a dangerous drug is an excepted offence.

15.If what was said by the defence counsel for D1 is true, then D1 was being made the scapegoat to shoulder the criminal liability alone.  He could have provided assistance to the police so that the other culprits could be caught.

16.In his mitigation, D1 said he had trusted other person wrongly.  He would shoulder responsibility and was grateful to the support that his parents have shown.  He asked for a lenient sentence.

17.D1’s parents are sad about D1’s wrongdoings and hope the court can pass a lenient sentence.

18.In accordance with the sentencing guideline and in normal circumstances, trafficking in 10 grammes to 50 grammes of cocaine will attract a sentence from 5 to 8 years.

19.In the present case, the drugs seized amounted to 26.47 grammes of cocaine.  The only material mitigation that D1 can put forward is his guilty plea.  That is a wise move.  Otherwise, D1 could have faced even longer sentence if convicted after trial.

20.After taking all factors into account, I would adopt a lower starting point of 5½ years and give the full one-third discount to D1 for his plea.  The sentence is reduced to 44 months.

21.I believe that the 16-year-old D1 has learnt a hard lesson and, with the support of his parents, he will turn over a new leaf and reform himself.  As such, I further reduce the sentence by 3 months to 41 months.

22.Although it may well be of little significance as to the sentence D1 is facing, the prosecution can consider to bring the common assault case back to a Magistrate in Tuen Mun Magistrates’ Courts to see if there is any action to be taken relating to the breach of the binding-over order.