HKSAR v. Yiu Chiu Fung

DCCC 279/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2014

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Reasons for Sentence

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1.Now, the defendant, Mr Yiu, has been convicted after trial of one offence of trafficking in a dangerous drug and, on his own plea, one offence of escape from lawful custody. The court found that the case had been proved that the defendant trafficked in what was a total of 8.76 grammes of the narcotic of cocaine.

2.The evidence established that the defendant was himself a consumer of the drug.  An inference can be drawn that the defendant would have sustained at least part of his drug consumption by trafficking in the drug. 

3.The defendant’s previous convictions show that he has no previous convictions for drug offences although I was told at trial that he had his probation order revoked as a result of a drug test which showed consumption of cocaine.  He has some other minor criminality involving, say, minor violence of theft in 2002 and 2005; since then, offences involving breaches of the Road Traffic Ordinance.

4.I have ordered a background report on the defendant.  He is the parent of a 3-year-old daughter who is currently in the care of his paternal grandmother.  The defendant has established at trial that he is a hardworking man and maintains two jobs.  He is, on the basis of the background report, a person who is active in the care and parenting of his daughter and, clearly, the family is worried about the impact that the defendant’s imprisonment will have on the daughter herself.  It is a factor that must be borne in consideration.

5.The defendant is one of those men who may well be that without his consumption of drugs and sale of drug would be unlikely to be involved in any serious criminality. 

6.On the 1st charge, the guideline sentence for this quantity of drug would range between 2 to 5 years’ imprisonment, that being in the region of up to 10 grammes of the drug.  This is a graduated amount.  That must, to a certain extent, relate to the quantity of drug which the defendant is found to have trafficked in.  And given that the upper band is at 10 grammes and the defendant has trafficked in over 8 grammes, 8.76 grammes, he would be towards the upper end of the guideline on that basis.

7.I must look also at the mitigation on behalf of the defendant.  Firstly, it is said that he is a first-time offender in this area. He has a close family.  He has a good relationship with his daughter and is active in care of her.  Besides the evidence of finances, there is little other evidence of the defendant actively trafficking.  And it may well be as far as the escape from lawful custody, it is said this was opportunistic and was in order to have time, spend further time with his daughter.

8.I must of course have regard to the mitigation put forward and also to the quantity of the drug the defendant is found to have trafficked in and the guideline figure the courts have put down.  I am also asked to take into consideration the fact that the court case itself was conducted in an economical manner, the defendant admitting all the facts save that of his whether he trafficked in the drug or not.

9.Taking all those considerations into account, I consider the appropriate sentence on the 1st charge is one of 3 years and 3 months’ imprisonment.  That is 39 months’ imprisonment.  Now, on the second offence, the defendant of course escaped on 13 February and surrendered on 17 February.  I consider that in respect of this offence, a starting point of 3 months’ imprisonment is appropriate.  I reduce that to 2 months’ imprisonment for his plea of guilty.

10.I must also consider the overall totality of sentence and I will deal with it as follows.  I order that 1 month of the second offence be served concurrently to the first offence and 1 month consecutively.  This will give an overall total of 40 months’ imprisonment for these two offences.  The defendant is sentenced accordingly.