HKSAR v. Lee Chun Fung Wallace

DCCC 1170/2021

[ 2022 ] HKDC 1028

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1170 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.The defendant (D) pleaded guilty to 1 count of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars of Offence alleged that on the 5^th day of September, 2021, at near the junction of Peking Road and Nathan Road, Tsim Sha Tsui, he unlawfully trafficked in a dangerous drug, namely 20.59 grammes of a solid containing 18.11 grammes of cocaine.

Facts of Case

2.The facts of the case as admitted by D is simple and straight forward.  At around 3 am on 5 September 2021 D was intercepted by 2 patrolling police officers at Peking Road near Nathan Road in Tsim Sha Tsui.  A body search was conducted on D and the following items were found on him:-

(i)  a transparent re-sealable plastic bag wrapped in tissue paper containing 0.66 grammes of a solid containing 0.57 grammes of cocaine in his left front trousers pocket;

(ii)  a transparent re-sealable plastic bag containing 63 transparent re-sealable plastic bags containing a total of 10.10 grammes of a solid containing 8.93 grammes of cocaine in his left shoe; and

(iii)  a transparent re-sealable plastic bag containing 15 transparent re-sealable plastic bags containing a total of 9.83 grammes of a solid containing 8.61 grammes of cocaine in his right shoe.

The total cocaine seized was 20.59 grammes of a solid containing 18.11 grammes of cocaine. Cash HK$4,164 was also found on him.

3.D was arrested and under caution, he admitted delivering dangerous drugs to make money as he was unemployed and bankrupt. 

4.In a subsequent video recorded interview, he further admitted under caution that he acted on the instruction of a male named “Ah Chun”.   At around 2 am on that day he received the dangerous drugs from “Ah Chun” in Kwun Tong and was instructed to go to iSQUARE to wait for collection.  He was arrested while waiting at outside iSQUARE.  He would be paid after the delivery.  He had never taken any dangerous drugs and he was unemployed since 18 August 2021. 

5.The estimated market retail price of the cocaine seized was HK$23,204.93.  

Personal Background of D

6.D is 23 years old, born in Hong Kong on 11 August 1999.  He is single and resided with his parents and an elder brother in a public housing unit in Ma Hang, Stanley.  He had received up to Form 6 education. He worked in the McDonalds as a branch manager until 19 August 2021 when he became redundant.  He was unemployed at the time of the offence.  According to the Background Report, he was declared bankrupt in 2020 after having incurred substantial debts in failed business investments.  He has a clear criminal record.

Mitigation

8.In mitigation, Mr. Tracy acting for D submitted that D had a decent background with no previous criminal record.  He committed the offence in pursuit of quick money.  He is now extremely remorseful and promised to redeem himself after serving out the sentence to be received in this case.  Mitigation letters written by D himself and 6 close relatives were also submitted, the contents all stated that D was of decent character and is extremely remorseful for the commission of the present offence.

9.Citing R v Lau Tak Ming[1] and AG v Pedro Nel Rojas^[2], Mr. Tracy submitted that the quantity of cocaine involved in this case, viz, 18.11 grammes, falls within the 10 to 50 grammes band, which attracts a sentence between 5 to 8 years.  D was a “one off” courier only.  Citing the 6 steps approach in HKSAR v Herry Jane Yusuph^[3], he asked the Court to consider a starting point at the bottom end of the scale.

Sentence

10.According to the sentencing guideline applicable to cocaine, the quantity involved in this case, viz, 18.11 grammes, falls within the 10 to 50 grammes band, which attracts a sentence between 5 to 8 years.  A strict mathematical calculation would produce a sentence of 5 years and 7 months’ imprisonment.

11.I accept that D was a courier simpliciter.  There are no other aggravating factors present to increase the criminality involved.

12.D is only 23 years old with a clear criminal record prior to the commission of the present offence.  He committed the offence for quick money to try to alleviate his financial problems arising out of poor business investment.  However, the CA has time and again stated that Trafficking in dangerous drugs is a very serious offence so that the element of general deterrence is of paramount importance.  Personal background of an offender carries little weight in terms of mitigation, see, eg, AG v Kong Kin Man[4]. Apart from the timely guilty plea, I see no other mitigating factor warranting further discount in this case.

13.I am prepared to be as lenient as possible to D.  Applying the 6-step approach enunciated by the CA in Yusuph, I adopt 5 years and 3 months as the starting point, reduce it by 1/3 to 3 years and 6 months for the timely guilty plea.  

14.For the offence D is facing, he is sentenced to 3 years and 6 months’ imprisonment.