HKSAR v. Sit Wing Yin
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DCCC310/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 310 OF 2013 --------------------
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------------------------------------- REASONS FOR SENTENCE ------------------------------------- 1.Defendant, you appeared before me facing a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.The particulars of offence aver that you:-
3.You pleaded not guilty to the charge and the trial had lasted for two days. You also challenged the admissibility of a police notebook which allegedly contained what you had said to PW1, the arresting officer, at the scene under caution and also a subsequent video record of interview which was recorded in Mongkok Police Station. 4.You said you did not say anything as described by PW1 when you were arrested or before you were arrested at the scene. You said you only signed the post-recorded entry in the notebook of PW1 because you were threatened and induced by the police officers. Out of your eagerness to save your girlfriend who was also arrested, you also promised the police officers to be co-operative and then answered everything they wanted you to say. You even went so far as to suggest that the police officers coached you how to answer the questions in the interview, and they had actually rehearsed with you those questions and answers beforehand. 5.This formed the basis of your allegations about PW1 to PW6 who were the members of Team 3, Special Duties Squad of the Mongkok District. 6.You elected also to testify in the special issue in order to substantiate your allegation. You also saw fit to call your girlfriend, Miss Chan Wai-lam, to testify on your behalf and to support your allegation. 7.The court had on the second day of the trial, after listening to the evidence and the submissions, ruled that all the statements allegedly made by you under caution both at the scene and in the police station were made by you voluntarily. The court also had refused exercising its general discretion to exclude these two exhibits on the ground of unfairness. 8.The prosecution closed its case after the ruling in the voir dire. I proceeded to rule that there is a case to answer to the charge. As of your right, you elected not to testify in the main issue nor did you call any further witness to testify on your behalf. The court then proceeded to listen to the final submission made on your behalf by Mr William Allan, your counsel and that was only on last Tuesday and then the case was adjourned until today (Monday) for reasons for verdict. 9.In this afternoon, the matter has taken a very dramatic turn. Mr Allan informed the court that he had just received instructions at the eleventh hour before the verdict was due to be delivered that you had decided now to plead guilty to the charge and therefore applied to reverse your plea. This application was accepted and you were once again arraigned and you had pleaded guilty to the charge and admitted the full content of the summary of the facts prepared by the prosecution. Facts 10.Based on the evidence received in the trial and also in the Summary of Facts, this is a very classic stop-and-search case. I can therefore largely adopt the Summary of Facts which you have admitted. 11.In the small hours of 22 January 2013, PW1(PC13603) and other team-mates were conducting an anti-narcotics operation in Mongkok. At about 3:45 am, the officers spotted a private vehicle bearing registration number RV 1078 parked at the junction of Fa Yuen Street and Argyle Street, Mongkok. You was sitting at the driver seat and a female, Chan Wai-lam (“Chan”), was sitting at the passenger seat next to you. You were both intercepted by the policemen, and upon search of the vehicle, a red paper bag containing four transparent resealable plastic bags inside containing suspected cocaine, Exhibit 1 to 4, were found under Chan’s seat. 12.You admitted to PW1 that you trafficked cocaine to Mongkok for a reward of $500 because you had no money. Cash in the sum of $12,400 was also found near the handbrake area. The admission was post-recorded in PW1’s notebook which you also signed. 13.At 4:21 on the same day, a video-recorded interview was conducted in the Mongkok Police Station. During this interview, you admitted under caution that you trafficked Exhibit 1 to 4 from Tin Shui Wai to Mongkok for a reward of $500 since you needed money to repair your car. 14.On 21 January 2013, at about 10:00 pm, you met a friend, Ah Lung, in a cybercafé at Tin Shui Wai. Ah Lung knew that you needed money to repair the car so he offered you $500 to bring a red paper bag to Mongkok the next day at 3:15 am. Ah Lung told you that there was cocaine inside the red paper bag and when you opened the red paper bag, you confirmed that you saw there were four packets of crack cocaine in yellow colour. 15.As instructed by Ah Lung eventually you drove to the 7-Eleven convenience store outside Sincere House in Mongkok. You did not know who would pick up the drugs but you were only instructed to park the car there. After the delivery, you would return to Tin Shui Wai and then you would expect to receive $500. 16.You also admitted that you borrowed the vehicle RV 1078 from your friend a month ago who had since gone to Australia. You also admitted that you yourself were not a drug addict. 17.The street value of the cocaine at the time of the offence was $50,170. Criminal records and background 18.You are aged 29 and you have a hitherto clear criminal record. You have Form 5 education level. According to the antecedent statement, you were a truck driver by occupation. You live together with your parents and a younger sister at a public housing estate in Tin Shui Wai. You were once married but you divorced in 2007 and you have a 5-year-old son and the son is now taken care by your ex-wife who has his custody. 19.Today, Mr Allan had produced to the court altogether seven letters of mitigation written by the close family members as well as your girlfriend, Miss Chan, who had testified for you. I am not going to go into the details of these letters. Suffice it to say that they all said that this offence is committed out of your character and that you are basically a responsible son and a father and urge the court to be lenient to you. 20.Mr Allan informed the court that you have no history of drug-taking and there is also no history of any triad affiliation. You have a supportive family and this is a fall from grace and you will end up in a lengthy imprisonment term. You still had the courage to plead guilty to the charge albeit very late after the ruling of the voir dire and after final submission before the court is about to give its reasons for verdict. 21.As for the question of discount, Mr Allan acknowledged that he had told you that you cannot expect to have the full one-third discount which is usually given to a person who has pleaded guilty at the beginning of the trial but he still asked the court to consider perhaps thinking of giving you still a discount of one-fourth perhaps to take into account that finally you did not go into the witness-box or call any other witness in the main issues or general issue. 22.The chain of evidence has also been admitted by way of an admitted fact during the trial. All in all, although this is a contested trial, this is not a long and complicated trial. 23.Mr Allan accepted that the sentence for cocaine was governed by the same sentencing guideline as in heroin in the case of Lau Tak Ming. As to the question of the degree of the discount, Mr Allan has left the court to exercise the discretion to give you the most favourable consideration. Sentencing Considerations 24.Trafficking in dangerous drug is of course a very serious offence. Anyone who was involved in the trafficking of the dangerous drugs when caught would be expected to be dealt with severely by the court. You are a person of clear record and you were not even a drug addict. In other words, you only committed the offence because of the economic consideration. 25.According to what you have said in your cautioned statement, you explained that you decided to accept this offer to traffick the cocaine for a meagre sum of $500 but at the same time it was found by the police inside the vehicle a cash of over $12,000. You have explained in your record of interview that this money was actually constituted of the savings which you have earned when you were working as a delivery worker. You further explained that the reason why you wanted that $500 so much was because you did not have enough money to repair your vehicle which had been damaged during a traffic accident. 26.I find it hard to believe that if you have that sort of money, over $12,000, that you would still be lured by the offer of a mere $500 to commit a serious crime such as the present. There is no good explanation why you cannot just use that $12,000 odd dollars that you have in your possession to take care of the repairing expenses of the vehicle. 27.While I accepted that you committed the present offence because of economic reasons, I cannot find myself to accept that the amount of your reward was only $500. However, it makes no difference in sentencing you because the Court of Appeal has said so many times that one cannot accept economic reasons for committing any crime. 28.I have looked at the letters from your family members. They were supportive of you throughout this trial and they are also here today. In particular, I note that your mother is suffering from nasal cancer and was just recovering from it. Of course, I can understand the feelings and the need for you to accompany her in her path of recovery. However, the Court of Appeal has said and made it so clear that family circumstances is something which I cannot take into account when I deal with a serious offence such as trafficking in dangerous drugs. 29.The only mitigation in your case is therefore your plea of guilty which in the usual course of event, if it was tendered and offered in the beginning of the trial, the discount will be one-third. 30.A one-third discount was meant to be a generous discount because all pleas were encouraged by the court as it saved court’s time. But in your case, instead, you decided to fight the case and you obviously felt you lost after the ruling of the special issue was against you. By accepting the summary of the facts as you have just done in the court, in effect, you had been making groundless accusations and allegations against the team of police officers who were just doing his job in this drug operation. Not only that, you also saw fit to call upon your girlfriend, Miss Chan, to tell the court a tissue of lies to support your case. 31.Although it is still a plea in the end, a lot of time has been taken up by this case in considering and writing up the reasons for the verdict. As a matter of fairness, it should be reflected in the reduction or to the extent of the reduction of your discount which you would otherwise be entitled. 32.The present quantity of cocaine came to a total of 33.65 grammes of cocaine. According to the guideline in heroin, which is applicable to cocaine, for quantities between 10 to 50 grammes, the starting point is set to be 5 to 8 years’ imprisonment. Based on the present quantity, I consider that a suitable starting point is one of 6 years which is 72 months. 33.If you were convicted after trial, no doubt I would sentence you to 6 years’ imprisonment. If you had pleaded guilty right in the beginning of the trial as said, you would receive a one-third discount and therefore you would have a 24 months’ discount. The sentence would have been 4 years’ imprisonment. Now you chose to fight your case and you lost. You also chose to tender and offer your plea only at the very last possible stage of the proceeding when I was about to give the reasons for the verdict. 34.In the end, it is all a matter of choice and consequence. As the matters stand, I considered all the circumstances of the case, including the fact that you have a clear record and your background. I decided that I can only give you half of the one‑third discount which is one-sixth and that is 12 months. In the end, Defendant, for this offence, you are going to prison immediately for 60 months and that is 5 years’ imprisonment.
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