HKSAR v. Ho Ho Yin

DCCC 180/2018

[2018] HKDC 1125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 180 OF 2018

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

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

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

Reasons for Sentence

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

1.The defendant has pleaded guilty to Charges 1 and 2, both trafficking in dangerous drugs offences.  There was a Charge 3, but it has been left on the court file.

2.Charge 1 involved 2.13 grammes of a solid, containing 1.85 grammes of cocaine.  Charge 2 involved 19.04 grammes of a solid containing 15.82 grammes of cocaine.

3.The facts are that on 27 November 2017, the police mounted an anti-narcotic operation in the car park of Metro Harbour View in Tai Kok Tsui.  It would appear the defendant was a target because when he approached a private car at about 3.30, he was intercepted by the police.

4.Their suspicions were very accurate, because when he was searched, a plastic bag containing 10 transparent resealable plastic bags were found in his left front trousers pocket and they contained the cocaine of Charge 1.  Under caution, he admitted he was selling those drugs to customers for profit.

5.He was then escorted home, which was on the 22nd Floor of Block 6 of Metro Harbour View, and during a house search, all the dangerous drugs of Charge 2, were found in a locked desk drawer in his bedroom.  The drugs were contained in 90 transparent resealable plastic bags.

6.The police also found an electronic scale, a pair of scissors and a large amount of small resealable plastic bags. The police also found a plastic bag containing HK$83,350 and some foreign currency. 

7.The defendant admitted, under caution, that he had bought dangerous drugs to sell to customers for profit.  He himself was not a drug addict.

8.On 25 or 26 November 2017, he had bought 100 packets of cocaine and he had bought them for $15,000 and that’s why he had 90 packets found.  He would earn about $4,000 for every 100 packets he sold. He would take orders from customers and deliver them personally.  He would sell drugs at a price of $800 for every three packets.  He told the police that he would make about $20,000 a month.

9.He told the police that he used to be a chef earning 13,000 to 15,000 a month.  He admitted that the scales, bags and the pair of scissors were used for packing dangerous drugs.  He had rented those premises from September 2017.

10.It is an admitted fact that the street value of the drugs in Charges 1 and 2 together, total $28,918.

11.The total amount of the dangerous drugs, when I add up Charges 1 and 2, total 17.67 grammes.  For sentencing purposes, I will add up and consider the drugs of both charges together, that is, 17.67 grammes.  It makes sense, as the drugs of both charges are the same. 

12.The offences were basically committed almost at the same time and are intertwined.  The only difference is that Charge 1 can be said to have been committed downstairs in the carpark, whereas Charge 2, the drugs were found upstairs in the defendant’s premises.

13.The defendant’s best mitigation is his plea today.  Mr Au has said all he can say on behalf of the defendant in mitigation.  He is now 27 years old and is single.  He does have a criminal record.  He has one previous appearance in court where he was convicted of two charges of trafficking in dangerous drugs.  In the High Court in 2011, he was sentenced to 6 years and 9 months for trafficking in dangerous drugs.

14.I have also heard in mitigation that the defendant has elderly parents, in particular his father, who is 86-years-old and in ill health.  I have also had a cite of mitigation letters submitted on behalf of the defendant.  They include letters from the defendant himself and his father.  The defendant expresses remorse for his actions and hopes to be able to continue to look after his parents.

15.There is also a letter from the defendant’s previous employer, the proprietor of a Japanese restaurant, where the defendant was a chef just prior to commission of these offences.  He was surprised the defendant committed these offences when he was a hardworking and ambitious member of his staff.

16.Mr Au has explained that the defendant committed these offences because he had got himself into debt over an investment that went wrong.  The investment was between $300,000 and $400,000 and the defendant was being chased for repayment and needed to make money to repay this debt and thought this was the quickest way to make that money, to make money to repay it.

17.I have been told the defendant is aware of the tariff for trafficking cocaine.  I have referred myself to R v Lau Tak Ming [1990] 2 HKLR 370 where between 10 to 50 grammes of cocaine is involved, a starting point after trial of between 5 to 8 years would be appropriate.

18.Therefore, a starting point for 17.67 grammes does attract a starting point of 5 years and 6 months’ imprisonment. The defendant has pleaded guilty and is entitled to a discount of one-third for his plea.  That is a discount of 22 months.  Once that discount is applied to that starting point, it is reduced to 3 years and 8 months.

19.Therefore, I sentence the defendant to both Charges 1 and 2, to a sentence of 3 years and 8 months, both sentences to be served concurrently.  A total of 3 years and 8 months’ imprisonment.