HKSAR v. Yuen Tsz Hei

DCCC 1014/2022

[2023] HKDC 1270

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1014 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking dangerous drugs, namely a solid containing 17.43 grammes of cocaine.

Summary of facts

2.On 13 July 2022 at about 0128 hours, the police intercepted the defendant for a body search and found a wrapped tissue paper in his underpants.  Inside the paper, there were two lots of dangerous drugs:-

(a)  35 transparent resealable plastic bags containing 9.6g of cocaine;

(b)  29 transparent resealable plastic bags containing 7.83g of cocaine.

3.The defendant had cash of $140 and one mobile phone on him when he was arrested.

4.The estimate value of the drugs was about $28,031.10

Criminal record

5.The defendant committed various offences since 1996.  He has 15 previous court appearances with 5 counts of trafficking dangerous drugs and 4 counts of possession of dangerous drugs.

6.His last conviction was in 2022 for an offence of burglary and he was released in June 2022.

Background information of the defendant

7.He is now 43 years, divorced.  He has a son who is now 22 years, but he is bed-ridden as he suffers from cerebral palsy.  The defendant needs to contributed $4,000 to 5,000 a month to support him when he has income.

8.Since his release from prison in June, he has been working as a construction site earning $1,000 per day.

9.He wanted to earn quick money and therefore committed the present offence.  He is now remorseful.

Sentence

10.The sentencing guideline for trafficking cocaine can be found in The Queen v Lau Tak Ming [1990] 2 HKLR 370.

11.For a narcotic content of 17.43g of cocaine, it attracts a sentence of 5 years 6 months.

12.The defence accepted that there are aggravating factors in the present case:-

(a)  He has a long list of criminal convictions. 5 records of trafficking dangerous drugs.

(b)  He committed the present offence one month after his released from prison.

13.As such, the starting point should be enhanced by 6 months.  It arrives at 6 years.  After 1/3 deduction, it comes down to 4 years.

Self-consumption

14.Lastly, whether the defendant is entitled to any further discount as he claimed part of the drugs was for his own consumption.  The defence relied on the urine test taken in the Correctional Services Department after his arrest which showed cocaine positive.  He claimed that he took 0.3g of cocaine once 2-3 days, which costs him $400 each time.

15.The Prosecution does not accept such an assertion. 

16.The fact that he was tested positive for cocaine is neither here nor there.

17.As stated in HKSAR v Wong Suet Hau & another CACC 366 and 487 of 2000 that the defence needs to satisfy the court that the “significant portion” of the drugs was for his self-consumption.

18.While in HKSAR v Cheung Wai Man [2019] HKCU 176 at para 49 further said that the significant portion of the drugs were to be consumed by the defendant must “based on credible and reliable information.”  As there is “a real danger of abuse in this avenue of mitigation, …… mere assertion from the bar table, unless agreed or not in dispute, will generally not suffice.”

19.That means the assertion must be confirmed /supported by factual material.

20.The defence informed me that the defendant will not give evidence on the issue of self-consumption.

21.I refused to reduce the sentence for the following reasons:-

(a)  He found a job in the construction site one week after his release from prison. He earned $1,000 per day, he only worked 2 to 3 days a week. The total he has earned was about $10,000.

(b)  He contributed $2,000 to support his son out of the $10,000 of his earnings.

(c)  He paid $5,000 to his friend for his accommodation.

(d)  He claimed that he took 0.3 g of cocaine once 2-3 days, which costs him $400 each time. The defence said that in a week, it was about $800 and in a month it was about $3,200 per month.

(e)  He only has $140 with him at the time of the arrest.

(f)  The estimate street value of the cocaine being seized was about $28,000. He simply has no money to purchase the drugs in question.

(g)  The time of interception by the police was 0128 hours.

(h)  He was intercepted at the junction of Cheung Sha Wan Road and Pei Ho Street when all streets were quiet without any pedestrians. He himself lived in Sham Shui Po.

(i)  The drugs were found at the back of his underpants in a wrapped tissue paper. As such, they were not obvious for anyone to see that he had 64 (35 + 29)  small packets of drugs with him.

(j)  They were packed into small packets, it was clear to me that they were ready for selling and for re-distributions.

(k)  He remained silence when he was arrested.

(l)  There were no items for drugs consumption when he was arrested.

(m)  In mitigation, he said that he wanted to earn quick money.

22.To this end, I rule that the defendant fails to satisfy me that significant portion of the drugs were for his own consumption.  His claim of self-assumption is not made out.  He is not entitled to any further discount.

23.He is order to serve a sentence of 4 years.