HKSAR v. To Kai Yin

HCCC 61/2019

[2019] HKCFI 1770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 61 OF 2019

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

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

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

Transcript of the Audio Recording

of the Sentence in the above Case

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

COURT:

The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf.

It was a stop-and-search case. The facts may be summarized as follows. When the defendant was walking downstairs in a residential building, he was stopped by police officers. Upon search, officers found in his trousers pocket a plastic bag wrapped in tissue paper containing 23.8 grammes of a solid containing 19.9 grammes of cocaine.

Under caution, the defendant admitted that the dangerous drug “coke” belonged to him. The defendant was then escorted to a flat upstairs. Under the bed, officers found 48 plastic bags containing a total 104.54 grammes of a solid containing 89.44 grammes of cocaine, an electronic scale and a large number of empty plastic bags. The defendant also admitted that the dangerous drug “coke” belonged to him.

Inside the flat another electronic scale, a spoon, a card and some empty small plastic bags were also found. When he was interviewed later, he admitted he agreed doing some task for a man to earn some quick money. He was later instructed to pick up a bag from the roadside. The bag contained the dangerous drugs seized and cash of $4,100 which was given to him for daily expenses.

He packed the drug into some bags. Each bag was of 0.20 grammes to 0.21 grammes to be sold at $300. When he was intercepted, he was on his way to try to sell the bag of drug in his trousers pocket.

The defendant is now 29 years of age. He is single. He received education up to Form 3 and has been a kitchen worker. This is the second time he committed the offence of trafficking in a dangerous drug. In 2008 when he was 18, he was convicted of the same offence and sentenced to rehabilitation centre.

In mitigation under counsel, Mr Sher informed the court that the circumstances in which the defendant committed the offence were consistent with what he admitted under caution. The defendant committed the offence out of greediness and financial hardship. He stressed that the defendant had been co-operative and pleaded guilty at the earliest opportunity.

The dangerous drug which the defendant trafficked in was cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in the case of trafficking in cocaine, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, a sentence of 5 to 8 years was suggested for a case of trafficking in heroin if the narcotic content is 10 to 50 grammes and 8 to 12 years’ imprisonment was suggested if the narcotic content is 50 to 200 grammes.

Having considered the whole circumstances, I do not see any grounds to depart from the tariff. In my judgment, the following starting points should be adopted: Charge 1, 5 years and 9 months; Charge 2, 9 years.

Although the defendant did have one similar conviction before, it took place quite a while ago and from the sentence it appears that it was a relatively minor case. I therefore do not consider it necessary to enhance the sentence.

The defendant is entitled to a one-third discount for the guilty pleas which he tendered at the earliest opportunity. Having considered the whole circumstances, including what learned counsel said on his behalf, I am of the view that this is the extent of discount the defendant is entitled to.

So, defendant, please stand up. I therefore impose the following sentences: Charge 1, 3 years and 10 months; Charge 2, 6 years. There are two charges. In the circumstances of the present case, I am of the view that in deciding the total sentence, the total quantity of the drug involved should be taken into account. It was 109.34 grammes, for which a sentence of 6 years and 4 months after plea is appropriate.

Having regard to totality, I order 4 months of the sentence for Charge 1 to run consecutively to that of Charge 2, making a total sentence of 6 years and 4 months.