HKSAR v. Yip Wai Chun

DCCC 85/2023

[2024] HKDC 168

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 85 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 3 charges of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

Charge 1

2.About 10:25 p.m. on 21 September 2022, police officers stopped the defendant outside High Prosperity Terrace, Kwai Shing Circuit, Kwai Chung for enquiry.  Upon search, a transparent plastic bag which contained 0.27 gramme of a solid containing 0.22 gramme of cocaine (E1)  and a car key were found in the left front pocket of the defendant's shorts.

3.The car key led the Police to a private car XG6822 ("the Car").  Upon search, 7 transparent plastic bags which contained a total of 1.85 grammes of a solid containing 1.53 grammes of cocaine (E2)  were found in the storage compartment of the front offside door.

4.The defendant was arrested at 10:46 in the same evening.  Under caution, he admitted that he would deliver the drugs for $1,000.

Charge 2

5.The Police escorted the defendant to his home situated at 32^nd Floor, Tower 1, High Prosperity Terrace ("the Flat").  Pursuant to a search warrant, the Flat was searched.  The following items were found at the end of the defendant's bed :-

(a)  40 transparent plastic bags which contained a total of 8.86 grammes of a solid containing 6.28 grammes of cocaine (E3);

(b)  19 transparent plastic bags which contained a total of 4.02 grammes of a solid containing 3.11 grammes of cocaine (E4);

(c)  1 plastic bag which contained empty transparent plastic bags (E5);

(d)  1 digital scale (E6);

(e)  1 metal spoon (E7); and

(f)  cash in the sum of $3,720 (E8).

6.Under caution, the defendant admitted that the packaging paraphernalia and the drugs were intended for trafficking in return for a reward of $1,000.

Charge 3

7.About 12:30 a.m. on 22 September 2022, the Car was searched with the assistance of a police dog.  In the storage box underneath the driver's seat, 2 transparent plastic bags which contained a total of 0.29 gramme of a solid containing 0.26 gramme of cocaine (E9)  were found.

8.Under caution, the defendant admitted that he left E9 there without knowing about it.

Video recorded interview (VRI)

9.In his VRI, the defendant admitted, inter alia, that all the drugs seized were cocaine.  He accepted an offer on 21 September 2022 to deliver the drugs for a reward of $1,000.  He stored the drugs in the Car out of convenience.

Mitigation & Sentence

10.The defendant is 23 and has 2 conviction records, which involved 2 "simple possession" offences. Defence counsel Mr. Leung informed me that the defendant is single and resides with his mother and one of his brothers.  The defendant was a delivery worker earning about $16,000 per month.  In mitigation, Mr. Leung submitted that the defendant is a cocaine addict.  He would consume about 4 grammes per week.  In order to feed his drug habit, he foolishly agreed to store, package and deliver cocaine for someone.  The defendant would receive 15 grammes of cocaine from the dealer each week; he would retain 4 grammes for himself and receive $1,000 as his reward.  In fact, Mr. Leung has invited this court to give a sentencing discount to the defendant for self-consumption.

11.Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  For 10 to 50 grammes, the range is 5 to 8 years.

13.In Charge 1, the defendant trafficked in 1.75 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 2.5 years, which I would adopt.  With the timely guilty plea, the sentence is reduced to 20 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 20 months' imprisonment for Charge 1.

14.In Charge 2, the defendant trafficked in 9.39 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 4 years and 10 months.  For ease of calculation, I adopt 4 years and 9 months' imprisonment as the starting point for this charge.  With the timely guilty plea, the sentence is reduced to 38 months.   I sentence the defendant to 38 months' imprisonment for Charge 2.

15.In Charge 3, the defendant trafficked in 0.26 gramme of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 2 years and 1 month.  For ease of calculation, I adopt 2 years' imprisonment as the starting point for this charge.  With the timely guilty plea, the sentence is reduced to 16 months.   I sentence the defendant to 16 months' imprisonment for Charge 3.

16.Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. Mr. Leung submitted that the 19 packs (E4)  were separated from the rest of the cocaine found; and E4 weighed about 4 grammes.  Thus, the evidence strongly supports the defendant's claim that E4 (about 27.2% of the total quantity of cocaine found[2])  was intended for self-consumption.  Mr. Tan for the prosecution objected to the defendant's claim.  He submitted that 4 grammes were a quantity conveniently chosen by the defendant because it just happened to be E4's weight.  Furthermore, the defendant was cautioned many times but he did not mention anything about self-consumption at all.  In reply, Mr. Leung explained that the defendant did not go into details about his drug habit in his VRI was reasonable and normal. One can easily infer that as a layman, the defendant did not appreciate the significance of self-consumption in sentencing and that he might well have been reluctant to disclose his drug habit in order to avoid further trouble.

17.In all 3 charges, the defendant trafficked in a total of 11.4 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate global starting point is 5 years and 1 month, which I would adopt.  The defendant has previous convictions of "simple possession" and was sentenced to a Drug Addiction Treatment Centre twice.  His urine test report shows that his urine sample collected on 24 September 2022 (2 days after his arrest)  was cocaine positive.  Hence, I accept that the defendant could be a cocaine user and that a portion of the cocaine found could be for his own consumption.  On the other hand, I agree with Mr. Tan that 4 grammes were a quantity conveniently picked by the defendant since it was how much E4 weighed.  Other than his mere assertion, there is insufficient evidence to support the quantity intended for self-consumption claimed by the defendant.  After due consideration, I am prepared to reduce the global starting point to 57 months[3] to reflect the discount for self-consumption.

18.With the timely guilty pleas, the overall sentence is reduced to 38 months[4].  Hence, I order the sentences for Charges 1 to 3 to run concurrently.  Thus, arriving at a total prison term of 38 months.