HKSAR v. Yau Ka Ming

DCCC 922/2018

[2019] HKDC 898

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 922 OF 2018

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

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

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

Reasons for Sentence

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

Charge and facts

1.The Defendant pleads guilty to a charge of trafficking in a dangerous drug and admits the Summary of Facts. 

2.At about 11:40pm on 27 July 2018, police officers PC 10712 (“PW1”) and WPC 14533 (“PW2”) intercepted the Defendant and a female outside Ground Floor, No. 380 Shanghai Street, Yau Ma Tei, Kowloon, Hong Kong.

3.PW1 conducted a body search upon the Defendant.  Upon search, one plastic bag (“Exhibit 1”) was found hidden under the waistband of his underwear.

4.At around 11:48pm, PW1 arrested him for Trafficking in a Dangerous Drug.  Under caution, he stated that Exhibit 1 was for his self-consumption.

5.Between around 5:19pm and around 5:30pm on 28 July 2018, PW1 conducted a video recorded interview (the “VRI”) with him. In the VRI, he stated that: -

(i) Exhibit 1 was cocaine;

(ii) he purchased Exhibit 1 from an unknown man for HK$5,000 at a park near the corner of Shanghai Street and Hamilton Street one hour before his arrest;

(iii) he kept Exhibit 1 under the waistband of his underwear;

(iv) he purchased Exhibit 1 for his own consumption;

(v) he consumed cocaine multiple times each day;

(vi) Exhibit 1 would have been sufficient for his own consumption for approximately one week.

6.Exhibit 1 was later examined by the government chemist and confirmed to be 11.7 grammes of a solid containing 11.2 grammes of cocaine.

7.The total street value of the cocaine found was about HK$13,841.

8.At all material times, the Defendant was in possession of the dangerous drugs involved in this case for the purpose of unlawful trafficking.

Mitigation

9.The Defendant is 41 years of age, of F. 1 education level.  He was a garage maintenance worker with a monthly salary of around HK$11,000.  He was living with his wife and two daughters, aged 1 and 6 respectively, before the offence. 

10.He had many criminal records, including 5 for drug trafficking as follows:

(i) Trafficking, sentenced to DATC in 1993;

(ii) Trafficking, sentenced to 8 months in 2008;

(iii) Trafficking, sentenced to 4 years in 2009;

(iv) Trafficking x 2, sentenced (on appeal) to 6 years in total in 2013.

11.Counsel in mitigation submits that half of the drugs was for self-use whereas the other half was for trafficking.  I find this submission clearly contrary to the Particulars of Offence and also the Summary of Facts, both of which refer to the entire quantity of drugs to be for trafficking.  Therefore I do not accept such mitigation.   

Sentencing considerations

12.The sentencing guidelines point to 2 – 5 years’ imprisonment for trafficking in up to 10 grammes of cocaine.  For 10 – 50 grammes, it is to be 5 – 8 years (Attorney General v Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLR 370). 

13.The starting point for sentence may need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other hand (HKSAR v Chan Pui-chi [1999] 2 HKLRD 833). 

Sentencing this Defendant

14.On the facts of the case, I consider a starting point of 5 years.  As aggravated by the Defendant’s persistent drug trafficking records, I take an actual starting point of 5 years 9 months (ie 69 months).  After a one-third discount for the guilty plea, the sentence is 3 years 10 months (ie 46 months).