HKSAR v. Yuhono V Tedi

DCCC 761/2021

[2022] HKDC 732

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 761 OF 2021

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REASONS FOR SENTENCE OF D1

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Charge

1.D1 pleads guilty to trafficking in a dangerous drug (Charge 2). 

Facts

2.On the evening of 17 December 2020 the police searched the fence surrounding a hut in Yuen Long.  In between the fence and a metal pile with four surveillance cameras installed above they found an ECLIPSE metal box wrapped in tape with a magnet attached.  In the box were 17 plastic bags containing a total of 2.63 grammes of a solid containing 1.82 grammes of cocaine (E1).

3.In between the fence and a banner attached thereto the police found a plastic bag containing a resealable plastic bag containing 5 resealable plastic bags, each containing cocaine (E2 - E6).  E2 - E6 were 15.28 grammes of a solid containing 10.49 grammes of cocaine.

4.E1 - E6 were 17.91 grammes of a solid containing 12.31 grammes of cocaine.  The estimated street value was $35,820.

5.When the police entered the hut D1 and two males were inside.  A notebook with contents of handwritten numbers was on a mahjong table.  D1 had $621.20 cash on him.

6.In the subsequent video recorded interview D1 admitted under caution as follows:

(1)  he had been asked by a male to sell those substances for $250 per packet;

(2)  he would get $15 per packet as commission;

(3)  He had been selling them for around one month;

(4)  he would place them at the fence outside;

(5)  he would record the transactions in that notebook;

(6)  the male would go to the hut to collect the proceeds.

7.D1 was a Form 8 recognisance holder.

Mitigation

8.D1 has a clear record.  He was born in Indonesia.  His wife, two sons and one daughter still live there.  In 2019 an agent talked him into paying the equivalent of US$4,000 to get a work permit and a profitable job in Hong Kong. He borrowed money to pay the agent.  He came to Hong Kong but could not get the work permit or the job.  He committed the present offence to repay the debt. 

9.He had written to the Immigration Department to withdraw his non-refoulement claim in February 2022.  I do not see such move relevant to his sentence for what he had committed but it means there is no chance for him to reoffend with this status.   

10.The sentencing guideline suggests 5 - 8 years for trafficking 10 - 50 grammes of cocaine (R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 1 HKC 342). 

11.D1’s being a Form 8 recognisance holder committing an offence affecting the public is an aggravating factor in his sentence(HKSAR v Sandagdorj Althankhuyag [2014] 1 HKC 206).  His counsel accepts that.  

Sentencing

12.On the facts I take 62 months as the starting point.  I increase it by 66 months due to D1’s status as a Form 8 recognisance holder when he committed the offence but he cannot reoffend with this status again.  From an eventual starting point of 66 months I reduce it by one-third for the guilty plea.  The sentence is 44 months.