HKSAR v. John Ho Yin
Read the full judgment text of DCCC 681/2024 on BabelCite. This District Court judgment was delivered on 20 March 2025.
2. About 4:15 a.m. on 2 March 2024, PC 26136 (PW1) was on duty in an unmarked police vehicle. He saw a private car VP7095 ("the Car") moving at a noticeably slow speed of about 10 km/h. PW1 stopped the Car outside Nos.11-13 Man Ming Lane, Yau Ma Tei for enquiry. The defendant was the driver and the only person on board of the Car.
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DCCC 681/2024 [2025] HKDC 502 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 681 OF 2024 ________________________
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________________________ REASONS FOR SENTENCE ________________________ The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine. Summary of Facts 2.About 4:15 a.m. on 2 March 2024, PC 26136 (PW1) was on duty in an unmarked police vehicle. He saw a private car VP7095 ("the Car") moving at a noticeably slow speed of about 10 km/h. PW1 stopped the Car outside Nos.11-13 Man Ming Lane, Yau Ma Tei for enquiry. The defendant was the driver and the only person on board of the Car. 3.Upon search, a $50 banknote folded into a packet which contained 0.09 gramme of a solid containing cocaine (E1) was found in the defendant's jacket pocket. In his underpants, 15 plastic bags which contained a total of 4.29 grammes of a solid containing 3.51 grammes of cocaine (collectively E2) were found. 4.Under caution, the defendant claimed that E1 and E2 were for his self-consumption. Mitigation & Sentence 5.The defendant is 26 and single. He has 4 conviction records involving 6 offences, 2 of which are "simple possession". Defence counsel Mr. Ng informed me that the defendant is educated up to Form 1. He was a delivery worker earning about $20,000 per month. He has a son (aged 3) with his ex-girlfriend. His son is primarily looked after by the ex-girlfriend. The defendant resides with his parents and is the sole bread winner of his family. 6.In mitigation, Mr. Ng submitted that the defendant is a long-term cocaine user. At the time of his arrest, he consumed about 0.3 gramme per day. Mr. Ng has also raised self-consumption as mitigation. 7.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. 8.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. 9.Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. Mr. Ng submitted that the defendant had intended to keep half of E2 (i.e. 7 packets) for self-consumption. Ms. Chan for the prosecution objected to the defendant's claim for lack of evidential basis. 10.The defendant has 2 previous convictions of "simple possession" and has been sentenced to a Drug Addiction Treatment Centre twice (in 2016 and 2022). His Rapid Oral Fluid Test conducted on 24 August 2023 in relation to a traffic/drug case (which eventually became DCCC 139/2024) showed cocaine positive. 11.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 consider half of E2 (or 7 packets) to be a quantity randomly picked by the defendant. Other than his mere assertion, there is insufficient evidence to support his claim for the quantity intended for self-consumption. 12.The defendant trafficked in 3.51 grammes of cocaine. Applying a strict arithmetical approach, the appropriate starting point is 3 years. I am prepared to grant him a nominal discount of 3 months for self-consumption, reducing the starting point to 33 months[2]. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 22 months' imprisonment. Overall sentence 13.Moments ago, I have just sentenced the defendant to a total prison term of 18 months in DCCC 139/2024. He committed the present "trafficking" offence whilst on police bail for DCCC 139/2024. Both cases are about 6 months apart and their nature is similar. I did not increase the starting point for the present offence for re-offending whilst on police bail. On the other hand, both cases are separate and distinct. Notwithstanding the totality principle, I order 18 months in the present case to run consecutive to the sentences in DCCC 139/2024. In other words, the total prison term for both cases is 36 months.
[1] See HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121; HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v Cheuk Kin Man CACC 294/2009 (English translation). [2] In Chow Chun Sang (supra), Yeung VP held "…when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain…" (para.19, p.1126) In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, Zervos JA held "We should point out that a sentencing court, in any event, has a discretion to discount a sentence to reflect an element of self-consumption." (para.50, p.829). |
Cases cited in this judgment