HKSAR v. Ho Ka Che

DCCC 559/2021

[2022] HKDC 477

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 OF 2021

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REASONS FOR SENTENCE

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1.Mr Ho pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars are that he, on 5 March 2021, on a private car bearing registration mark VX7683, at Parking Space No PC 26, Ground Floor, Shui Chuen O Estate (Phase 2)  Car Park, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 18.23 grammes of a solid containing 16.66 grammes of cocaine.

Facts admitted by Mr Ho

3.On 5 March 2021, at about half-past one in the afternoon, Mr Ho unlocked the driver’s door of his VX7683 parked in a Car Park in Sha Tin.  After he got in the car, two police officers nearby intercepted him and brought him out for investigation.

4.Upon search, police found the car key, two mobile phones and cash of $11,190 in Mr Ho’s right pants pocket.

5.Police also found in a secret compartment below the infotainment system at the centre console of the car the following items:-

(a)  10 transparent plastic bags (9 of which were contained in a bigger transparent resealable plastic bag)  containing a total of 4.53 grammes of a solid containing 3.26 grammes of cocaine; and

(b)  A pouch which contained a transparent resealable plastic bag containing 18 smaller transparent resealable plastic bags containing a total of 13.7 grammes of a solid containing 13.4 grammes of cocaine.

6.Mr Ho was then arrested for the subject offence and under caution, he said he sold the “coke” for quick money.

7.In a cautioned VRI the same day, Mr Ho stated:-

(a)  “coke” meant cocaine;

(b)  The cocaine was purchased from a taxi friend 4-5 days ago in Tai Kok Tsui;

(c)  He paid $900 for each small bag of cocaine;

(d)  He would then sell each small bag for $1,200;

(e)  He did not have the habit of taking drugs;

(f)  He had handled dangerous drugs for 4-6 months; and

(g)  Among the cash seized, $1,200 was the proceeds of selling cocaine.

8.The total estimated street value of the recovered drugs was $34,000.

Criminal record

9.Mr Ho has one dissimilar previous conviction for which he was fined $10,000 in 2003.

Antecedents statement

10.Mr Ho is aged 56 (55 at the time of the offence); he was educated to F5 level, a part-time waiter before arrest.  He resided in Shatin.

Mitigation

11.Mr Frederick Fong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

12.Mr Ho is married with one son studying F4.  Mr Ho had been a full-time taxi driver until 2020 but became unemployed during COVID-19 pandemic.  He committed this offence for monetary gain.  The last conviction was in 2003. The court is asked to treat Mr Ho as having no previous record.

13.Mr Ho was a simple courier.  He made full and frank admission on arrest.

14.Mr Ho pleaded guilty and is entitled to one-third discount.  There is no aggravating factor.

15.The sentencing band for 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment: R v Lau Tak Ming [1990] 2 HKLR 370.  The court is invited to sentence on the basis of 16 grammes and thus the starting point would be 65.4 months arithmetically.

16.Mr Fong submitted one mitigation letter written by Mr Ho himself in Chinese (with English translation).  The contents are generally that Mr Ho committed the offence for economic reasons; that he is genuinely remorseful and will not commit the offence again.

Sentence

17.Trafficking in a dangerous drug is a serious offence.

18.Deterrent sentences are called for according to sentencing bands applicable to each type of drug depending on weight.

19.I will treat Mr Ho as a person of clear record.  However, that does not assist him one bit because he has been convicted of an offence as serious as this one.

20.For trafficking in 10 to 50 grammes of cocaine, the sentence after trial is between 5 and 8 years’ imprisonment.

21.On a purely arithmetical assessment, the sentence for trafficking in 16.66 grammes of the drug should be 5 years 6 months.  I see no reason to depart from this assessment in the case of Mr Ho.

22.The starting point that I will adopt for Mr Ho is therefore 66 months.

23.Mr Ho pleaded guilty in good time so he shall be entitled to a 1/3 discount on sentence.  I can discern no other grounds to reduce the sentence further.

(Mr Ho, please stand)

24.The sentence for Mr Ho is therefore 44 months’ imprisonment.