HKSAR v. Yeung Chak Fung

DCCC 323/2019

[2019] HKDC 1375

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 323 OF 2019

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REASONS FOR SENTENCE

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1.In this hearing, the defendant Yeung Chak Fung is convicted of one count of trafficking in a dangerous drug upon his plea and admission of facts.

2.The facts reveal that on 21st January 2019 at about 8 pm the defendant was intercepted by the police when he was leaving a MTR station.  Upon search, the police officer found inside the right back pocket of the defendant’s trousers a resealable plastic packet containing cocaine.  He also had a small amount of money, cash, and three mobile phones. 

3.Under caution, the defendant admitted that he was going to return the drugs in question to its dealer because of its poor quality. 

4.The search of the defendant’s home found no other paraphernalia relating to dangerous drugs. 

5.The government chemist confirmed that the plastic bag contained 21.8 grammes of a solid with 13.7 grammes of cocaine. 

6.The estimated street value was HK$27,250.

7.The defendant admitted that he was trafficking the dangerous drug in question.

Sentencing consideration

8.Sentencing for different kinds of drugs have been considered repeatedly by the Court of Appeal and both the prosecution and defence do not take issue on the validity of such authorities.  Simply put, trafficking in cocaine is aligned to trafficking in heroin, which, according to the authority of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the present quantity falls within the 10 to 50 grammes bracket, which warrants 5 to 8 years’ imprisonment.

9.According to the sentencing guideline, the proper sentence should be 63 months’ imprisonment as a starting point.

10.In the present case, Mr Davies tried to persuade the undersigned to give him more leeway as this case is of out of the ordinary: the defendant was about to return the dangerous drugs  to its dealer because of their  poor quality.  Mr Davies also admitted that the sentencing principle is not affected by this rather curious fact or allegation. 

11.At the time when he was intercepted by the police, he was trafficking that quantity of dangerous drug, so I do not see this particular fact has any bearing in the sentencing of the case. 

12.I do not really see any valid factor which could justify my departure of the established tariffs for sentencing in trafficking drugs.

13.Accordingly I adopt 63 months as a starting point, reduced to 42 months in view of his guilty plea.

14.I turn to consider other mitigating factors put forward by his lawyer and also those that could be reviewed in his antecedent statement.

15.The defendant is aged 19 years: admittedly of a very young age, but he had already a total of six previous convictions, two of which were related to dangerous drugs.  In fact, there were a total of three counts of dangerous drugs involved.  They were of a slightly different nature – they were not offence of trafficking in dangerous drugs.  I do not consider this not an aggravating factor, not it is a mitigating one. 

16.He is over 19; by most standards a young adult.  Added to the fact that he had had a total of six previous convictions, I do not see his youth can be a valid justification for extra leniency. 

17.I have also considered the letter of mitigation by the defendant himself (showing he was remorseful) and those of his mother and his parents and ex-girlfriend. 

18.The only persons I have sympathy for is those who loved the defendant. They do not deserve the agony of having their loved one sent to jail. 

19.However, in the present case, the sentencing principle is to adopt a deterrent sentence in order that to stop not only the defendant himself but also others from committing similar offences.  So the personal circumstances and my sympathy for the defendant’s family are not valid consideration.

20.Trafficking in dangerous drug is a vile offence.  They are in fact trafficking misery and the court has reiterated the same principle in that such offences would not be treated lightly and they would be sentenced in accordance with the law.

21.Therefore, apart from the defendant’s plea of guilty, I see no valid mitigating factors or any valid reason which might justify my exercise of my discretion of leniency.

22.The defendant is sentenced to a term of imprisonment for 42 months.