HKSAR v. Kwok Chi Hung

HCCC 81/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 81 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Background and the facts

This case was listed for trial starting from 31 July 2015. Then, while the prosecution’s case and the voir dire was still ongoing, the defendant, on 5 August 2015, gave an indication that the matter could be shortened. Eventually, after the prosecution were given time to prepare these Summary of Facts, the defendant pleaded guilty to the count of trafficking in a dangerous drug on 7 August this year, and he admitted the facts set out in the Summary.

Briefly, on 28 October 2014, the defendant was seen arriving at Hing Cheung House, Tai Hing Estate, Tuen Mun, with his girlfriend. They met up with a female there. Earlier, the police observed that the female had been walking to and fro outside Hing Cheung House, had approached and stared at a rubbish bin there, and had used the mobile phone. Upon the defendant’s arrival, the female and the defendant then walked to and fro outside the staircase of Hing Cheung House before approaching the rubbish bin. Eventually, the female pointed to the ground around the rubbish bin. The defendant then walked towards that direction, bent over, and reached out with his right hand. Afterwards, the defendant rose and left with the female with his girlfriend following behind.

The trio was later intercepted by the police. Upon search, the police found in the defendant’s right hand, 10 resealable transparent plastic bags containing the drugs particularised in the count. That is, a total of 24.85 grammes of a crystalline solid containing 24.17 grammes of methamphetamine hydrochloride, commonly known as “Ice”. Under caution, the defendant stated that he was asked by the female to go over to pick up the “Ice” for her. The defendant said he would get 3.5 grammes of “Ice” for his own consumption in return.

In a subsequent video-recorded interview, the defendant reiterated his claim made under caution, and provided further particulars.

Mitigation

The defendant is aged 35 and has been separated from his wife. At the time of the offence, he was living with his family members, his girlfriend and their daughter, aged around one. The defendant was educated up to Form 2 level. After leaving school, the defendant had worked in his father’s renovation company for over 10 years. He was earning about HK$20,000 a month at the time of his arrest.

The defendant was once before the court in 1995 with the conviction record of common assault. He was 16 years’ old then, and was put on probation in respect of that conviction.

In mitigation, it was said that the defendant is now truly remorseful. He has pleaded guilty and a lenient sentence is asked for.

The Sentence

The tariffs for trafficking in “Ice” was originally laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125, and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004, unreported. For trafficking between 10 and 70 grammes of “Ice”, a term of 7 to 10 years’ imprisonment was called for. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the guidelines for trafficking in “Ice” in that for an amount between 10 and 70 grammes, the term should be one between 7 to 11 years.

The new guidelines are applicable for offences committed after the judgment was handed down, that is 9 June 2014. Since this offence was committed by the defendant on 28 October 2014, the new guidelines are applicable in this case.

Although the defendant has one previous conviction, it was in respect of a relatively minor offence, and was quite dated. Therefore, I am going to completely ignore that conviction in considering the appropriate sentence in this case. I should also mention that although the defendant only pleaded guilty half way through the voir dire, I am prepared to give him the full one-third reduction for his guilty plea, for I accept that his plea, although not tendered at the earliest reasonable opportunity, did truly reflect his genuine remorse. To say the least, it must have been apparent to both parties that at the time when the defendant indicated his guilty plea, the voir dire was not in any way going in a direction unfavourable to him.

Mr Allan for the defendant has also provided to the court a letter written by the defendant himself and another by his family. In short, the defendant expresses deep regret for what he has done. It is also obvious that the defendant has a very supportive family.

Having considered the relevant facts and following the new guidelines, I take the view that a starting point of 7 years and 9 months is appropriate in this case. Although the defendant said that some 3.5 grammes of “Ice” would be for his own consumption, I do not regard this as capable of reducing his term in any significant manner. One of the reasons is that even for simple possession of a dangerous drug, that itself would attract a term of imprisonment.

Now, after taking into account the defendant’s guilty plea, and all the mitigating factors put before me including the special circumstances on the papers, I am going to reduce the 7 years and 9 months term to one of 4 years and 3 months. The defendant is therefore to serve a term of 4 years and 3 months for this offence.