HKSAR v. YOWN WING HONG

HCCC 83/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 83 OF 2013

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HKSAR
v.
YOWN Wing‑hong (翁永康)

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Before: Hon Line J

Date: 5 June 2013 at 10.30 am

Present: Mr John Marray, on fiat, for HKSAR
Mr David Boyton, instructed by Louis K Y Pau & Co, for the accused

Offence: Trafficking in a dangerous drug(販運危險藥物)

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: I have to sentence you for trafficking in dangerous drugs. The drug in question was cocaine and you had 110 grammes of it.

You were stopped whilst in a taxi. The drugs were in 14 packets. Two packets were in your pocket, the rest were in a knapsack thatyou had. You made immediate claims to the police that a significant proportion of the drugs were for your self-consumption. No onedisputes that you are an abuser of cocaine.

The prosecution realistically say that they could not put their case so high that all of this was to be trafficked and none of itwas for your own consumption. They do not agree, however, with your estimation that 50 per cent of it would have been for your ownconsumption.

I have heard from Mr Boyton who puts your case very nicely on your behalf. Whilst he repeats your instructions of 50 per cent it isnot a figure that he clings to with any great ferocity because he puts your case like this.

He says basically that your drug habit costs you about $15,000 a month. You earn between $10,000 and $20,000 a month as a taxi driver.You are separated, you live with your mother, you have no great expenses but, nonetheless, for your expensive cocaine habit you haveto subsidise it by selling some cocaine. He says on this occasion you managed to buy the cocaine for $70,000.

The prosecution do not come along with wholesale figures but that is not so great a difference from the retail price as if it hadbeen sold on the street in deals of up to 5 grammes where it could have realised $187,000.

You are 38 years of age. You have no previous convictions of any sort. On your side you have the fact that when the police stoppedyou, you immediately said that the significant proportion was for your own consumption and it goes without saying that the urge toexaggerate the quantity of your own consumption would be an obvious one.

You have been told that sentencing for drug trafficking depends upon guidelines which are based upon the nature and quantity of thedrug. You fall in the category that runs from 50 grammes to 200 grammes. That attracts a starting point after trial of 8 to 12 years.So a starting point, mathematically, if you were going to traffic all of these drugs without taking in any for your own consumptionwould have been a little just under 10 years.

What Mr Boyton urges upon me is that I should stay in the bracket. He does not ask me to go outside it but says take a starting pointat the bottom of the bracket. He does not base that solely upon a mathematical amount of how much you would consume yourself.

Where I come from we used to have a working rule of “hard on a fight, soft on a plea”. It is another way of saying that if youdo not fight the case and spend your credibility trying to lie your way out of your difficult situation a court is more likely togive weight to the assertions you make in your mitigation.

It is obviously fair to proceed on the basis that some of these drugs you would consume yourself. It is obviously a quantity thatis not to be ignored but it is a quantity that I find unnecessary to seek to quantify. I do not say it is 50 per cent. All I needperceive, and I do perceive, is that it would have been an amount which should be reflected in the sentence.

With your clear record, a lack of any other aggravating features and that factor to be taken into account which I have just mentioned,I am willing to accede to Mr Boyton’s submission that the starting point be at the bottom of the bracket which the quantity ofdrugs puts you in. That would mean a starting point of 8 years after trial.

The one-third discount results in a sentence of 5 years and 4 months and, accordingly, that is the sentence I pass upon you.