HKSAR v. Huynh Wai Yin

DCCC 231/2023

[2023] HKDC 1704

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 231 OF 2023

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REASONS FOR SENTENCE

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1.Yes, the defendant has entered a guilty plea to three charges, firstly trafficking in a dangerous drug, namely cocaine, with a narcotic quantity of 7.35 grammes. Secondly and thirdly, two offences of failure to comply with the requirements to produce proof of identity for inspection. The first two offences were committed on 30 July 2022, the final offence being committed on 22 January 2023. The facts admitted show the defendant being intercepted by police around 1.28 am on 30 July 2022 in Tsim Sha Tsui when the taxi he was travelling in was stopped. The defendant was searched, nothing was found, but he was unable to produce his ID card so he was taken to Tsim Sha Tsui Police Station. A further body search at that location produced the cocaine which was found in a plastic bag found in the defendant’s sock. The street value of the cocaine was $9,902 in powder form and $16,094 in crack form. The defendant admitted purchasing the cocaine for $400 using his ID card that day. The defendant was still unable to produce his ID card when asked for by police on 2 January 2023. The defendant admits trafficking in the drugs charge.

2.The defendant is aged 47.  He has a clear record.  He is divorced with a 15 year old son.  In mitigation the defendant said that he would share the drugs socially.  He does not seek to argue that a substantial quantity of the drug is for his own consumption.  By occupation the defendant is a hair stylist.  In the past the defendant has achieved success, a reputed hairstylist.  For at least a period of 17 years he was heavily involved in the training and development of hair stylist practitioners.  At one time he was vice-chairman of the union which represent hairstylists within the Federation of Trade Unions.  The defendant also participated in 2016 as a member of the election committee for the election of Chief Executive.  In 2018 he became chairman of the Hair and Makeup Stylish Image Designers’ General Union. Unfortunately the defendant divorced in 2020.  He found difficulties at that time.  His trade was affected by the disruption of the social unrest and of course after that there was the pandemic.  In an event in that year 2020 the defendant became bankrupt.

3.As far as the approach to sentencing is concerned the trafficking in the drug cocaine is subject to tariff sentencing.  Generally the guideline for the drug heroin is applicable to cocaine.  By application this shows that the sentencing for up to 10 grammes of cocaine would lead to a sentence of between 2 to 5 years’ imprisonment.  The application of a purely mathematical linear approach would lead to a starting point for sentencing in this case of around 50.46 months’ imprisonment.

4.For the offence of failure to produce proof of identity a fine of up to HK$10,000 or 6 months’ imprisonment can be imposed.  Normally a fine would be imposed.

5.As far as the sentencing is concerned I am asked to take into consideration the defendant’s clear record, his plea of guilty, his public service and consider the overall totality of sentence.  Now the defendant has indicated a plea of guilty from an early stage.  He is of course entitled to a full one-third discount from any starting point for sentence.

6.In sentencing I do take into account the defendant has had a clear record up until he reached his late 40s and in his working life has been public-spirited and has contributed to society.  I will take the starting point for sentence on the first charge of 48 months’ imprisonment, reduced to 32 months or 2 years and 8 months’ imprisonment for the defendant’s plea of guilty.

7.On Charges 2 and 3, I will take a starting point of 9 days’ imprisonment on both, reduced to 6 days’ imprisonment for both.

8.Having regard to totality, I will order all sentences to run concurrently.