HKSAR v. Yeung Ha Wai
Read the full judgment text of DCCC 1177/2018 on BabelCite. This District Court judgment was delivered on 19 March 2019.
1. The defendant is convicted on his own plea to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Cites 2 cases
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DCCC 1177/2018 [2019] HKDC 465 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1177 OF 2018 ----------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.The defendant is convicted on his own plea to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.At 4:22 am on 19 September 2018, he was intercepted by police at the juncture of Pau Chung Street and Sheung Heung Street, To Kwa Wan, Kowloon, Hong Kong. 3.Upon search, the following items were found inside the defendant’s clutch bag:-
4.The defendant was then arrested for trafficking in a dangerous drug and admitted under caution that the drugs were given to him by “She Jai” and that he was responsible for repackaging of the drugs. Mitigation 5.The defendant is single. He is 22 years old. He received education up to Form 5 level but he was unable to finish the course. His father died when he was 15 and his mother is a housewife. 6.At time of offence, defendant lived with his elder brother, who seldom came home, he lived separate from his mother and two elder sisters. The defendant’s relationship with his siblings and mother was distant. 7.The defendant left school at the age of 18. It was during this time that the defendant starting taking drugs under influence of his peers. He has since worked in various jobs. His last job was a part-time porter at the airport. He became unemployed since early 2018 and was surviving on his own savings. The defendant committed the present offence for money. 8.He has two previous convictions, one of which is possession of a dangerous drug, namely cocaine. The offence was committed six months prior to the commission of the present offence. The defendant was sentenced to 9 months’ imprisonment. Expected day of discharge is 28 March 2019. Drugs involved in that case is 3.4 grammes of cocaine. It is admitted that the current offence was committed whilst he was on bail for the possession of the drug offence. 9.The defence counsel submitted that the defendant has made a confession upon arrest and he indicated his guilty plea at the earliest opportunity available. He should therefore be entitled to full one-third sentencing discount. 10.This court is also urged to take into account the fact that the defendant is a young person who lacked the necessary care and guidance from adults during his adolescent years. The defence counsel asks this court to be lenient on the defendant. Discussion 11.The sentencing guideline for trafficking in cocaine is laid down in the case of Attorney-General v Pedro Nel Rojas, CACC 15/1993. In that case, the court applied the sentencing guideline for heroin as laid down in the case of R v Lau Tak Ming, CACC 230/1989. The sentencing guideline set out in there says trafficking in 10 grammes to 50 grammes of cocaine will attract a sentencing starting point of 5 to 8 years’ imprisonment. 12.Here, the drug in question is 18.4 grammes of cocaine. 13.As admitted by the defence counsel, the defendant committed the current offence when he was on bail and this is an aggravating factor. 14.Applying the sentencing guideline in the present case, the court finds the appropriate sentencing starting point after trial should be 67.5 months. 15.The defendant has committed the present offence whilst on bail. The sentencing starting point is enhanced by another 2 months, bringing it to 69.5 months. 16.This court has also considered all mitigation advanced by the defence counsel and is of the view that the most valid mitigating factor is the defendant’s own guilty plea, of which he is entitled to full one-third sentencing discount, bringing the sentence to 46 months and 10 days’ imprisonment. 17.It is true that the defendant is a young offender, but he had already transgressed the law twice in the past. He has been incarcerated as a result in Detention Centre but has yet to learn a lesson, and had even further committed more serious offence than before. 18.This court also considered the fact that he was committed to prison for possession of a dangerous drug, same drug cocaine. The amount involved is 3.4 grammes. That offence was committed few months before the present offence. 19.Considering the totality principle, the sentence of the 46 months and 10 days would be reduced to 39 months, which, in my view, would be a just and proportionate sentence to his overall culpability in the two cases, which has been committed within short period of time. 20.Assuming that the two cases had been sentenced at the same time, and considering even if the 3.4 grammes formed part of the drugs seized for trafficking purpose in the present case, then the extra sentence would be another 3 months, which, after sentencing discount, would be another 2 months. 21.That is the reason for the reduction of the sentence from the 46 months 10 days to 39 months in the present case. 22.Accordingly, in this case, the defendant is sentenced to 39 months’ imprisonment. 23.The sentence of this case is to run consecutive to the sentence in the previous case of simple possession of a dangerous drug.
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