HKSAR v. Wu Ka Ho

HCCC 394/2018

[2019] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 394 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 to one count of trafficking in a dangerous drug, namely 45 grammes of a solid containing 35.8 grammes of cocaine.

Facts:

It is a simple stop and search case. On 31 May 2018 at night, the defendant was intercepted for Customs clearance at the Departure Hall, Hong Kong Macau Ferry Terminal, Sheung Wan in Hong Kong.

The Customs and Excise Officers conducted a preliminary ion‑scan check and it revealed a positive result, so the defendant was searched. During the search the defendant was told to take off his pair of sports shoes for checking. As a result, the officers found from the defendant’s left shoe, a piece of tissue paper, a leaf and a plastic zip-lock bag containing 109 plastic zip-lock bags containing a total of 21.2 grammes of a solid containing 16.4 grammes of cocaine.

The officers found from the defendant’s right shoe a chewing gum zip-lock bag containing a piece of tissue paper wrapping a plastic zip-lock bag containing 23.8 grammes of a solid containing 19.4 grammes of cocaine.

Arrested and cautioned, the defendant said the items found in the shoes did not belong to him and he did not know what they were. In the cautioned VRI, the defendant said he was a plumber earning around HK$20,000 a month. He continued to claim that he did not know what the items in the shoes were. He said he did not know who put the items in his shoes.

The cocaine seized had an estimated retail value of HK$49,000 in total at the time of seizure. By pleading guilty, the defendant admits and accepts that he was trafficking in a dangerous drug seized in this case.

Background and Criminal Record of the defendant:

The antecedents statement of the defendant states that he was born in Hong Kong and is now 28 years old. He received education up to Form 3 level. He worked as a plumber earning about HK$20,000 per month. He is still single, and at the time of the offence, he was living with his parents and his elder brother in a public housing estate in Shatin.

The defendant had 13 previous convictions since 2007 when he was only 13 years old and his last conviction was on 2017 when he was sentenced to 2 months’ imprisonment. During his adolescence and early youth period, he was in trouble with the law for numerous occasions and for that, he was sentenced to probation order, community service order, detention as well as training centre order.

However, obviously the defendant did not learn from all these lessons and in 2013, he was sentenced in the District Court for a total of 26 months’ imprisonment for two burglary offences. For all his previous convictions, he had only however, one drug-related conviction and it was a possession of a dangerous drug back in 2010 when he was about 20 years old and for which he was sentenced to the training centre.

Mitigations:

Mr Yuen tells me in mitigations that the defendant worked as a casual renovation worker before his arrest earning an average of $16,000 per month. As to why the defendant committed the present offence, Mr Yuen submits that his client just wanted to earn some quick money. He was introduced to a stranger by a friend. This stranger lured him to bring the cocaine to someone in Macau for a reward of HK$10,000.

Mr Yuen submits that the only mitigating factor is the defendant’s plea of guilty, which is a clear indication of his remorse. This is the first time the defendant was involved in drug trafficking offence. Mr Yuen said the defendant appreciated that he is now facing a substantive term of imprisonment and he also promises to the court to improve himself by receiving some trainings in the prison in order to turn a new leaf, after he was released.

A total of nine mitigation letters were submitted to me, in support of the defendant. I am not going to repeat the contents of those letters, sufficed to say that the defendant is really blessed in that no less than 20 relatives and friends have all signed up and vouched for him.

The defendant himself also promised to me in his own letter, to receive training, while serving his sentence, to become a forklift driver in the future. Needless to say, all his friends and relatives have asked the court in their letters, to pass a lenient sentence.

In the present case, Mr Yuen submits that for 38 grammes of cocaine, the defendant is in the band of 5 to 8 years’ imprisonment. He submitted that pure mathematical calculation brings a starting point of 6.9 years. For the international elements present in the case, Mr Yuen relies on the guidelines as laid down in HKSAR v Chung Ping Kun, CACC 85/2014 where it was held that for the quantity of drugs involved was up to 250 grammes, the level of enhancement is 6 months.

Based on the relatively low quantity of cocaine in this case, only 38.8 grammes and based on his calculation, Mr Yuen urged me to enhance the sentence for no more than 2 to 3 weeks. He urges me to impose the lowest possible sentence on the defendant.

Sentencing Considerations:

Trafficking in a dangerous drug is, of course, a very serious offence. The maximum sentence for this offence is life imprisonment and a fine of HK$5 million. Anyone who had committed this type of offence would expect to be severely dealt with by the court when it comes to punishment. As always the case, the court can never accept economic reasons as a mitigation. And family circumstances also play no part in mitigation.

The defendant has only himself to be blamed when he foolishly promised to be a courier of dangerous drugs, in order just to earn some quick money.

Now this case concerned 35.8 grammes of cocaine. In Attorney-General v Rojas [1994] 3 HKC 685, it was held that sentencing guidelines for heroin are applicable to cocaine. According to the tariff, as set down by the Court of Appeal in HKSAR v Lau Tak Ming & Ors [1992] HKLR 370, between 10 to 50 grammes, the sentence is between 5 to 8 years’ imprisonment. Applying this tariff, I consider the primary starting point in this case should be 6 years and 11 months’ imprisonment.

The defendant was intercepted when he attempted to carry the cocaine to Macau. The international element in this case clearly calls for an enhancement, according to the authorities.

In HKSAR v Chung Ping Kun, CACC 85/2014, the Court of Appeal suggested, as a broad guideline, the level of enhancement for quantity up to 250 grammes is 6 months. Given the quantity of cocaine involved in this case, it is only 35.8 grammes, Mr Yuen adopts a pure mathematical approach and submits that perhaps the level of enhancement should be no more than 2 or 3 weeks’ imprisonment for the present quantity.

Understandably, his approach no doubt, is to arrive at a pro rata figure of the 6 month term, based on the actual quantity of the drugs involved in this case. My understanding of the broad guideline, as laid down by the Court of Appeal however, is that the 6 months’ enhancement is, in principle, applicable for all different quantities of drugs less than 250 grammes. Otherwise the guideline would states that the enhancement is up to 6 months and not 6 months.

In other words, in my judgment 6 months can be regarded as the minimum threshold for enhancement for the lesser quantity of drugs involved. Otherwise, if one just use a pure mathematical approach for those even lesser quantity of drugs, such as the present, the enhancement would only be a matter of weeks or even days. And in a situation like that, it would simply lose its original sentencing purpose of punishment and/or deterrence.

That said, I do not lose sight of the fact that the Court of Appeal has, in the past, on numerous occasions reminded the sentencing court that the guidelines are not meant to be strait jacket. And very often, the sentencing judge may, in appropriate cases, depart from the pure mathematical calculations to achieve a just result.

In this case, while I am not persuaded that the level of enhancement should only be a matter of 2 or 3 weeks, as suggested by the defence, at the same time I consider that I should not totally disregard the relatively low quantity of cocaine involved in this case.

In the end, I consider that I should exercise my discretion and therefore, slightly departed from the broad guideline as laid down by the Court of Appeal and order an enhancement of 4 months’ imprisonment.

The primary starting point of 6 years and 11 months, with 4 months’ enhancement, would bring the starting point to 87 months’ imprisonment.

The defendant pleaded guilty at the first available opportunity. He is entitled to have a one-third reduction for his guilty plea. That would bring his sentence down to 58 months’ imprisonment. That is 4 years and 10 months.

Defendant, stand up. On this case, I sentence you to a term of 4 years and 10 months’ imprisonment.

Now, defendant you are only 28 years old. You are not that old. Well I am astonished that for your age, you have in the past already 13 previous convictions. As I have said earlier in my sentencing remarks, that you obviously did not learn from your lessons. And this time you even foolishly engaged in the very serious type of offence, and that is trafficking in a dangerous drug, which ended up in High Court.

It is only lucky and fortunate in your case, that the quantity of drugs involved in your case is not that large by the High Court standard. I should tell you that people like you, standing in your position in the dock in the High Court, usually we see for sentence more than 10 years and even more than 20 years. So whether you want to go down that route, is purely a matter for you.

I only say these words to you because I can see that you have so many friends and relatives supporting you, which is rather unusual, and that is why I said earlier that you are blessed. So please do not let your friends and relatives down again and again and again.

Please do not say words just for the sake of mitigation. Please live up to your promise and learn yourself some sort of training, be it forklift driver or what, but don’t go back to be a drug courier. Understand me?

ACCUSED: Yes.

COURT: Very well.