HKSAR v. Yeun Wing Hung

DCCC 642/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 642 OF 2013

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REASONS FOR SENTENCE

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1.The defendant appeared before me this morning facing two charges. The 1^st charge is “Trafficking in a Dangerous Drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The 2^nd charge is “Assaulting a police officer in the execution of his duty”, contrary to section 63 of the Police Force Ordinance, Cap 232.

2.The defendant pleaded guilty to the 1^st charge while maintaining a plea of not guilty to the 2^nd charge.  After the defendant agreed the summary of facts, the prosecution informed the court that they were contented that upon conviction entered on the 1^st charge, the 2^nd charge would be left in the court’s file and not to be proceeded with without the leave of the court.  In the end, the court convicted the defendant of the 1^st charge accordingly after he fully accepted the summary of facts.

The facts

3.This is a very simple stop and search case.  According to the summary of facts which is admitted by the defendant, at about 9:59 pm on 15 April 2013, a police sergeant on plainclothes duty was patrolling at Tonkin Street near Lai Chi Kok Road, Sham Shui Po when he saw the defendant walking towards him. When they were a few feet away only, the defendant who was then speaking on his mobile phone said that “The coke had arrived”.  Upon hearing this, the sergeant immediately revealed his police identity and intercepted the defendant.  The defendant then used both his hands to push the sergeant’s chest. The sergeant approached the defendant again, grabbed his jacket and requested him to stop. The defendant then kicked at the sergeant’s left knee and then tried to flee. Eventually the sergeant caught up with the defendant and wrapped his arm around his waist.  There was a struggle that followed.  Eventually both of them fell onto the ground. 

4.During the struggle, the defendant took out a plastic bag from a black plastic bag hidden in his underpants and put this plastic bag into his mouth trying to swallow it.  The sergeant immediately stopped the defendant by pressing his nose with his left hand and requested the defendant to spit out the plastic bag.  There was another struggle which followed.  Eventually with the assistance of another police officer, the defendant was eventually subdued and arrested.

5.The sergeant was sent to the hospital for medical treatment which confirmed that he has suffered minor abrasions and tenderness during the struggle.

6.Police found cash of $311.20 on the defendant’s body and also three mobile phones each with a SIM card on him.

7.The present charge involved 21.25 grammes of a solid containing 17.73 grammes of cocaine.  The estimated street value of the cocaine is $21,738.

Criminal record and background of the defendant

8.The defendant had in the past been brought up in court on three different occasions, all in 2006, involving a single charge of “common assault”, a single charge of “theft”, three “robbery” charges as well as one “burglary” charge.  He was sentenced first to the Rehabilitation Centre and later to the Training Centre.  I was told that the defendant was released after two years in the Training Centre.

9.Defendant is only aged 23 and he is single.  He had been working as an assistant chef for the last five years earning monthly income of $16,000.  He lived with his grandmother.  His parents were divorced when he was very young and he was brought up by his grandmother and paternal aunt.  He only had a Form 2 education level and he had no drug addiction criminal record but I was told that he became involved in drugs since February 2012.

10.In mitigation, Mr Fong, his counsel, informed the court that although the defendant did not have any drug-related criminal record, unfortunately through the introduction of his colleague at work, he became addicted to cocaine since February 2012.  He has spent a lot of his income on drugs.  It used to be that he had contributed about $6,000 a month to his grandmother for household expenses and maintenance.  After he became addicted to cocaine, the dosage has increased and by the time when he committed this offence he had spent up to $8,000 a month on those drugs.

11.In relation to the present quantity of the drugs, Mr Fong informed the court that the defendant actually pooled funds together with his colleagues to buy the drugs from a source which he believed was cheaper than otherwise he would have obtained.  Mr Fong clarified with his client and told the court that all along they have been buying drugs from this drug dealer chiefly because he could offer drugs at a much lower market price.  In these occasions, half of the drugs involved, according to Mr Fong, was bought by the defendant while the other half was bought by his colleague.  In return, his colleague also promised to give about $2,000 as a reward for his carrying the drugs and for the risk associated.  In the end, Mr Fong also submitted a letter of mitigation to the court.  The letter was written by the defendant himself informing the court that he was so remorseful and reminiscent of the days when he was drug-free. He has promised the court to turn a new leaf and asked the court to be as lenient as possible.  Mr Fong told the court that his client knew full well that he was going to face a lengthy sentence but taking into account the defendant’s guilty plea and the mitigation that has put forward, he asked the court to pass a lenient sentence.

Sentencing considerations

12.Trafficking in dangerous drugs is of course a very serious offence and anyone who is involved in this criminal activity would expect to be dealt with severely by the court.  The defendant pleaded guilty which is of course the most important mitigation.  In addition, Mr Fong also informed the court that part of the drugs was actually for his self-consumption.  Of course when I was called upon to act on this mitigating factor, I have to take into account the fact that the defendant had no previous offence in relation to dangerous drugs, but on the other hand, I also look at the antecedent statement and noticed that after he was arrested, he already at the first opportunity informed the police that he had been addicted to cocaine since February 2012.  That is something which is consistent with what he told his counsel and what he has told the court today.  In the end, I am prepared to accept what he said that the reason why he involved in the present offence was because he was also consuming cocaine.

13.In the case of Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal has said that self-consumption of all or part of the drugs usually attracted a discount between 10 to 25 per cent of the basic starting point whereas the exact discount would depend on the nature and the quantity of drugs and the proportion of the drug intended for self use and whether the offence was organised, premeditated and for financial gain and lastly, of course, also taking into the account of the defendant’s background and the record. 

14.After considering carefully what Mr Fong had informed the court about the defendant’s background, I am prepared to reduce the sentence by the region of about 13 per cent. 

15.For trafficking in cocaine, the Court of Appeal has already said that the tariff for trafficking heroin applies.  Applying the guideline for heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370, for the present quantity, the proper starting point is 5 years and 6 months which is 66 months.  As I have said, I am prepared to reduce by about 13 per cent from the basic starting point.  I would therefore reduce the starting point by 9 months to 57 months.

16.The defendant pleaded guilty and that is the only mitigating factor for which he would enjoy a full one-third discount.  In the end, the defendant would receive a sentence of 38 months’ imprisonment.