HKSAR v. Yip Kim Fung

DCCC 699/2018

[2019] HKDC 1400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 699 OF 2018

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REASONS FOR SENTENCE

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1.The defendant is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, to which he pleaded guilty and admitted the relevant facts and was eventually convicted on 10 April 2019.

2.The sentence was adjourned after that, on the defence application to which the prosecution did not object, for certain matters to be looked into and considered.  I was just confirmed by the defence that those were no longer matters of concern and the Court can proceed with the sentence as usual today.

The admitted facts

3.On 19 May 2018, at around 1805 hours, the police executed a search warrant and entered Room 932, the 9^th floor, Tower 1, Harbour Plaza, Resort City, 12 Tin Yan Road, Tin Shui Wai, New Territories, Hong Kong.

4.The defendant and his girlfriend were inside the room.  The police searched the defendant and found from his front left trousers pocket a total of three plastic bags, containing altogether 27.36 grammes of a solid containing 26.1 grammes of cocaine.  The street value was estimated to be HK$30,276.

5.The police also found an electronic scale and 119 transparent re-sealable plastic bags on a table in the middle of the room.

6.The police arrested and cautioned the defendant for trafficking in a dangerous drug.  The defendant stated that the dangerous drug was cocaine belonging to him and his girlfriend was not involved.

7.The police conducted a video-recorded interview with the defendant on the same day.  Under caution, the defendant admitted that all the said items seized by the police were his.  He bought the cocaine for about HK$10,000, and that he used the electronic scale and plastic bags to divide the cocaine. 

The defendant’s background

8.The defendant is about 22 years-old.  He was born in 1996.  He is single.  He was educated up to secondary one and has been unemployed since dropped out from school.  He has a father, a mother, and four elder sisters.  He has five previous convictions, only one is drug-related, namely, a conviction of possession of pipe or equipment fit and intended for smoking or injecting or inhaling dangerous drugs, for which he was sent to Drug Addiction Treatment Centre in 2016. 

Mitigation

9.Dr Mohamed, for the defendant, submitted a written mitigation.  The defendant’s background, as provided by the prosecution, as well as the criminal records are basically confirmed, except that it is submitted that the defendant after having left school at about 12 to 13 years-old, had taken certain odd jobs, including delivery worker and factory worker, making at most HK$20,000 a month. 

10.It was submitted that he left school because of a lack of interest in studies.  He used to live with his parents at home but had very little contact with his father.  It is because, as submitted, that his father considered him a disappointment when all his elder sisters were high achievers academically.  His mother, however, remained supportive.

11.The defendant got involved with a group of undesirable friends prior to this offence and was told that he could make more money by selling drugs.  It is submitted that that was the first time he took part. 

12.He now realises his wrongdoing and is very remorseful.  He wrote a letter to express that and asked for a lenient sentence.  It is also submitted on his behalf that he had no similar convictions and that he made admissions in the record of interview. 

13.The value of the drugs is not high and that this is the first time that he would be facing a much lengthier jail sentence than before.  The defence accepted that there are guidelines for trafficking in dangerous drugs and urged the Court to take a lower band of the sentencing range for the amount involved. 

14.Finally, while accepting that the defendant did not plead guilty at the first available opportunity, the defence asked the Court to exercise discretion to still give him a full one-third discount for the reasons that he is not well-educated and that he took time to consider his case and reflect on his actions.

Sentence

15.The defendant is convicted of trafficking in 26.1 grammes of cocaine.  The facts, as described above, are not uncommon, where the defendant was found with drugs in three packets on his person, with an electronic scale and plenty of empty bags in his room.  He made full admissions afterwards that he bought the drugs and used the equipment to divide them.

16.There is well-established sentencing guideline under the Attorney-General v Pedro Nel Rojas, [1994] 2 HKCLR 69.  For trafficking in 10 to 50 grammes of cocaine, the starting point should be in the range of 5 to 8 years’ imprisonment.  There is no reason why the tariff should not be followed in this case.

17.I, therefore, adopt the starting point of 6 years’ imprisonment for the 26.1 grammes of cocaine involved in this case.

18.The defendant’s background and circumstances in this case do not disclose any aggravating factor, nor do they amount to any mitigating factor either.  The only mitigation in this case is the defendant’s guilty plea.  It was not tendered on the first available opportunity.

19.On the last mention hearing at the Plea Court on 6 December 2018, the defendant, through his counsel, indicated a not guilty plea and as a result, a 3‑day trial was set down to commence on 10 April 2019.

20.By a letter dated 25 February 2019, the defendant, again, through his counsel, wrote to the Court to express his wish to plead guilty on the first day of the trial on 10 April 2019, which he eventually did and was so convicted.

21.According to the Court of Appeal’s decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, a defendant who changed to plead guilty after trial dates had been fixed, but before the first day of the trial, should be afforded a discount between 25% and 20% from the starting point.  The sentencing judge will have regard to the time at which the indication was given and to all the other relevant circumstances.  See paragraph 224 of the judgment.  I see no reason why that should not be followed in this case.

22.Having regard to all the circumstances, in particular, the change of indication of plea was conveyed to the Court and the prosecution about 6 weeks before the 3-day trial was about to start, I am prepared to give the defendant a 25% discount for the guilty plea, which is the most generous I can do under the relevant sentencing principle and the circumstances of the case. 

23.I, therefore, sentence the defendant to 54 months’ imprisonment, i.e. 4 years and 6 months’ imprisonment.