HKSAR v. Huang Wai Yin Wilson

DCCC 132/2020

[2020] HKDC 662

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 132 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of Dangerous Drugs Ordinance, Cap 134. The dangerous drug involved was 37 grammes of a solid containing 23.2 grammes of cocaine.

Summary of facts

2.On 5 November 2019 at around 8:50 pm, the defendant was stopped by Customs officer at the Departure Hall of the Hong Kong Macau Ferry Terminal.  Upon search, the dangerous drug in question was found inside the underwear of the defendant.

3.Upon caution, the defendant admitted that the dangerous drug was to be delivered to Macau for a reward of HK$3,500.  The estimated street value of the concerned dangerous drug was estimated to be HK$38,850.

Defendant’s background and mitigation

4.The defendant was a few days short of his 18^th birthday at the time of the offence.  He is living with his divorced parent(s) and a younger brother who is 12 years old.  He is of clear record.

5.The defendant suffered from depression when he was 15 years old and had been admitted to Pamela Youde Nethersole Eastern Hospital in December 2016.  He is still being followed up by a psychiatrist.

6.The defendant is educated up to Form 4 and he then pursued the Diploma of Vocational Education (Fitness and Sports Studies) at the Vocational Training Council.  At the time of the offence, he was still a student of that programme.

7.In mitigation, Counsel said on behalf of the defendant that he is now remorseful of what he has done.  He owed a few thousand dollars to his friends before the offence and stupidly thought that the reward of the trafficking of dangerous drug would help him repay the debts.  As a matter of fact, he did not receive any reward as a result of the offence.

8.Strictly speaking, the defendant’s age did not fall into the category of extreme youth at the time of sentence, Counsel for the defendant asked the Court to consider his very young age and his clear record.

9.There are mitigation letters submitted to the Court from the defendant’s family members as well as his social worker in secondary school.  I can see from the letters that the defendant has been dearly loved by his family members and also the social worker in school.

10.Counsel for the defendant also submitted a sentencing case HKSAR v Yeung Wai Hei[1] for the Court’s consideration.  In that case, the defendant was 19 years old and was trafficking in around 23 grammes of cocaine, also from Hong Kong to Macau.  In that case, the judge adopted a starting point of 6 years and an enhancement of 3 months for international element.  After reducing the sentence for the timely plea, an extra discount of 3 months was given due to the defendant’s clear record.

Consideration of sentence

11.There are clear sentencing guidelines set out by the Court of Appeal in respect of trafficking in cocaine, which was established in the case of R v Lau Tak Ming & Others[2] which was confirmed again in the case of AG v Pedro Nel Rojas[3]. The starting point for trafficking in cocaine for quantities between 10 to 50 grammes is 5 to 8 years’ imprisonment. 

12.It has been said on many occasions that, additionally, if there is an international element in the case of trafficking in dangerous drugs, the starting point should be enhanced.  That legal principle was established in the case of HKSAR v Abdallah[4].

13.In the present case, having considered all the circumstances, including the facts of the case, the background and mitigation of the defendant, I consider that an imprisonment of 5½ years’ or 66 months’ imprisonment is appropriate.  I enhance it by 3 months because of the international element, making it 69 months’ imprisonment.  Because of the defendant’s timely plea, the sentence is reduced to 46 months’ imprisonment.  I have taken into account the defendant’s very young age and his clear record.  I will further give a reduction of 6 months.  So the final sentence received by the defendant is 40 months’ imprisonment.