COURT: The defendant, To Chun-wui, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The admitted facts. In the afternoon on 5 August 2021, the police conducted an anti-narcotics operation in Sheung Lok House in Ho Man Tin. The defendant was seen by the policemen laying ambush to open Room 622 with a key. The officers intercepted the defendant outside the flat and revealed their police identities. The officers showed a search warrant and entered the flat together with the defendant.
Upon body search, HK$80 and two mobile phones were found on the defendant. Also, a key of the flat was seized from the defendant.
And upon execution of search warrant in the flat in the defendant’s presence, the police found the following in a drawer of a wooden cabinet in the living room:
(1) one black plastic bag containing numerous transparent resealable plastic bags;
(2) 18 transparent resealable plastic bags, each with a red line, containing a total of 239 transparent resealable plastic bags containing dangerous drug; and
(3) two electronic scales.
Under arrest for trafficking in dangerous drugs, the defendant claimed that he received $5,000 for helping person to take the drug and then waited for calls for distribution.
In the video-recorded interview conducted later, the defendant said, among other things, the following:
(1) He owed someone $20,000 gambling debt. His friend “Wah Jai” asked him to distribute dangerous drug for monetary reward. He agreed as he was short of money, and he left his phone number for contact.
(2) And then he collected the black plastic bag containing dangerous drug from a driver after receiving a call from an unknown man, and he brought the bag back home. He placed the items inside a drawer in the cabinet, and that means the items found by the police. There were 18 large plastic bags containing numerous small bags of the dangerous drug cocaine.
(3) And he received anonymous call asking him to weigh the dangerous drug and to wait for further instructions to distribute the dangerous drug. He also received an anonymous call asking him to provide the weight information of the dangerous drug.
(4) It was the first time the defendant helped this person to distribute dangerous drug. He has yet to receive the $5,000 reward.
(5) And the defendant had already deleted his phone call and WhatsApp exchange with Wah Jai.
The government chemist confirmed that the 239 plastic bags contained 68.12 grammes of a solid containing 60.69 grammes of cocaine in total. The estimated street value of the cocaine seized was HK$99,727.
Background and Mitigation
The defendant is now 19 years of age. He was 17 at the time of the offence and he is a first offender. He studied up to Form 4 and claimed to be unemployed according to the antecedents statement.
In mitigation, Ms Barbara Wong, counsel for the defendant, gave a submission on his behalf. I was informed that the defendant came from a single-parent family, his mother having deserted him shortly after he was born. He was raised by his father who struggled to make ends meet. The defendant did not excel academically. However, he did well with various extra-curricular activities, including swimming and track events, and he won many trophies and medals.
After the defendant finished Form 4, he quit school and obtained a job working as an apprentice in the kitchen of a hospital canteen, earning $7,000 a month. And he was then giving his father $4,000 a month to supplement the family income. Due to COVID-19, he lost his job and thereby the income. And he became addicted to playing online gambling game and ended up incurring a debt of about $20,000.
A drug trafficker known to him as Wah Jai tried to recruit him to traffic dangerous drug, telling the defendant that he could earn quick money and he would be able to repay the debt and even with some extra to save up until he is gainfully employed. The defendant refused to work for Wah Jai at first but finally succumbed. He acted as Wah Jai told him and collected the black bag containing the dangerous drug and the electronic scales and brought them home to await further instructions. He was arrested two days later.
Ms Wong submitted that given the tragic background of the defendant and the fact that he was basically a good person who had been led astray, rehabilitation is of more importance in the defendant’s case than punishment. The defendant was remorseful and fully cooperated with the authorities.
Ms Wong ventured to suggest this Court to consider passing a training centre order for the offence, making a point that since the defendant has been in custody for 1½ years and his time in remand will not be counted for the calculation of the training centre period, the defendant will be exposed to three years’ detention plus another three years of supervision while if he is sentenced to gaol, he is likely to be kept for another 23 months, assuming this Court adopts a starting point of 8 years.
Ms Wong cited the case of the Attorney General v Kong Kin Man in which the Court of Appeal said that training centre is not a soft option. Towards this end, Ms Wong asked this Court to obtain a training centre suitability report.
The rest is my consideration for the sentence. For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million.
The total quantity involved here is 60.69 grammes, which falls into the category of 50 to 200 grammes, with a starting point of 8 to 12 years. That is according to the case of Pedro Nel Rojas, adopting the guidelines in Lau Tak Ming.
As to the role of the defendant, at first I thought that he was not a mere courier or a mere storekeeper. I thought that he was involved in the storage, packaging and dissemination of the dangerous drug cocaine. And later on, it was confirmed that all the defendant did was he kept the dangerous drug in his home inside the drawer, and when he was asked to weigh the package, the package was already packed and he did not do any distribution. So, I am prepared to accept that he really acted basically as a courier, and I will sentence him on that basis.
I appreciate the hardship experienced by the defendant when he was growing up, being deserted by his own mother. However, he really had himself to blame for incurring a debt of $20,000 playing online games. And he was of a relative young age, 17, when he committed this offence. However, balancing the interest of the society against the interest of the defendant, I am not persuaded that this is a proper case to consider a training centre order when a deterrent sentence is required. In fact, in the case of Kong Kin Man, it cited the case of AG v Suen Yuen Ming saying exactly the same point because trafficking in dangerous drug is so serious that a deterrent sentence is required even for a younger offender.
So having taken into consideration the quantity of cocaine involved and the defendant’s role, a starting point of 8 years would be appropriate. And the defendant, of course, pleaded guilty at a very early opportunity and is entitled to a full one-third discount.
With the one-third discount, the sentence is 5 years and 4 months. All right? So that would be the sentence of this Court.