HKSAR v. Chan Man-yuk

DCCC 540/2021

[2022] HKDC 143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 540 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.About 8:20 p.m. on 3 February 2021, Sgt. 53473 (PW1)  spotted 2 males (later identified as the defendant and "Leung")  outside Regal Kowloon Hotel at Mody Road, Tsim Sha Tsui.  He immediately summoned PC 26554 (PW2)  and PC 16743 (PW3)  for assistance.

3.PW1 followed the defendant and Leung to Knutsford Terrace.  The duo met up with a female outside Stanford Hill View Hotel at Observatory Road.  PW1 approached this party of 3 to conduct enquiries.  The defendant suddenly ran away whilst Leung and the female were intercepted by PW1.

4.PW1 informed PWs 2 and 3 of the defendant's appearance and the direction towards which he was heading.  PW2 later intercepted him outside No.46B Kimberley Road.  During the struggle, PW2 saw the defendant discarding 3 small resealable plastic bags on the ground.  Their contents were later found to be :-

(a)  1 transparent resealable plastic bag which contained 7 smaller transparent resealable plastic bags which contained a total of 1.03 grammes of a solid containing 0.99 gramme of cocaine;

(b)  1 transparent resealable plastic bag with traces of a powder containing cocaine which contained 7 smaller transparent resealable plastic bags which contained a total of 1.05 grammes of a solid containing 1.01 grammes of cocaine; and

(c)  1 transparent resealable plastic bag which contained 8 smaller transparent resealable plastic bags which contained a total of 1.54 grammes of a solid containing 1.49 grammes of cocaine.

5.Upon search, inside the defendant's right front trouser pocket, a resealable plastic bag which contained 4.44 grammes of a solid containing 4.27 grammes of cocaine was found.

6.Under caution, the defendant admitted that Leung would give him $1,000 for keeping the dangerous drugs for Leung.

7.In his video recorded interview, the defendant admitted, inter alia, that "Ah Jim" (i.e. Leung)  had asked him to deliver cocaine to others for a reward of $1,000 per day.  He met Leung via WhatsApp on 2 February 2021.  In the evening on 2 February 2021, the defendant met up with Leung in the lobby of Regal Kowloon Hotel.  Leung rented a room (Room 1363)  and the 2 of them went up to the room. In the room, Leung took out an electronic scale, some small resealable plastic bags and a bag of cocaine.  Leung showed the defendant how to weigh and package the cocaine into the small resealable plastic bags.  The defendant said he had packed about 50 bags of cocaine, each containing 0.16 to 0.17 grammes of substance.  The defendant left the room around 7:00 a.m. on 3 February 2021. He returned around 6:00 p.m. on the same day.  In the room, Leung gave him 4 packets of cocaine and asked him to deliver them to others.  Since the defendant did not know his way, Leung asked the defendant to follow him to the hotel at Observatory Road.  When approached by the Police, the defendant was scared.  So he ran away and discarded 3 bags of cocaine on the ground.

8.Room 1363 of Regal Kowloon Hotel was searched.  A black paper bag which contained packaging paraphernalia including an electronic scale, a pair of scissors and a large quantity of resealable plastic bags was found inside a safe deposit box.

Mitigation & Sentence

9.The defendant is 18 and has a clear record.  Defence counsel Mr. Chan informed me that the defendant was still 17 when he committed the present offence.  In mitigation, Mr. Chan submitted that the defendant was unemployed.  He therefore wanted to earn the money offered by Leung.

10.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh young offenders, so that there is a deterrent effect.

11.Although the defendant is under 21, by virtue of section 109A(1A)  of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  I accept that as a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

12.When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

13.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment. In the present case, the defendant trafficked in 7.76 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 4 years and 4 months.

14.In view of the defendant's age and being a fresh offender, I adopt a starting point of 4 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 32 months' imprisonment.