HKSAR v. Pun Hoi Kit

HCCC 509/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 509 OF 2014

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The Particulars of Offence provide that on 4 May 2014, at the Lok Ma Chau Control Point, New Territories in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 2.48 kilogrammes of a crystalline solid containing 2.36 kilogrammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The Summary of Facts admitted by the defendant provides that on 4 May 2014, the defendant, then a 20-year-old man, was intercepted for Customs clearance on his arrival into Hong Kong at the Lok Ma Chau Control Point. An examination of a bag carried by the defendant produced a red box which on further examination was found to contain five transparent plastic bags containing suspected dangerous drugs.

The defendant was arrested and cautioned, and claimed that he did not know what the “stuff” was and that it was a box of chestnuts he had bought in the mainland for $1,000 for his in-laws.

The suspected dangerous drugs were later examined and consisted of 2.48 kilogrammes of a substance containing 2.36 kilogrammes of methamphetamine hydrochloride.

The seized dangerous drugs had an estimated retail value at the time of their seizure of HK$1,046,560.

In a subsequent video-recorded interview, the defendant stated, inter alia:

(1) that he had purchased the box of chestnuts for $1,000, having gone to the mainland for entertainment, at a shop the details of which he could no longer remember;

(2) he had not opened the box after purchasing it and had not seen the dangerous drugs.

The defendant’s Immigration movement record show that he had departed Hong Kong at the Lok Ma Chau Spur Line Control Point at 1059 hours on 3 May 2014 and had returned to Hong Kong at 0009 hours on 4 May 2014 at the Lok Ma Chau Control Point.

In the Summary of Facts, the defendant expressly admitted and accepted that he was trafficking in the dangerous drug seized in this case.

By way of personal background, the defendant is now 22 years of age. He was born in November 1993. The defendant is single. He received primary and secondary education in Hong Kong. He took up employment since the age of 16. He had worked as a construction worker; a scaffolder, for one year before his arrest and was earning around $12,000 per month.

The defendant has four previous criminal convictions, three of which are for possession of a dangerous drug.

By way of mitigation, Mr John Haynes urged the court to give the defendant the full discount for his guilty plea. I was told that the defendant yielded to temptation when he was offered $25,000 to take the box of drugs from China to Hong Kong.

Aside for his guilty plea, Mr Haynes also urged upon the court to take into account his youth. However, although the defendant is young, I am not able to regard him to be of extreme youth, and I do not feel able to give him any discount for this reason.

As to assistance to authorities, if any of the assistance turns out to be fruitful, no doubt it will be recognised by the Court of Appeal or even the executive in due course.

I deal first with the proper starting point.

The offence in the present case was committed on 4 May 2014. The tariffs set out by the Court of Appeal in AG v Ching Kwok Hung [1991] 2 HKLR 125 are applicable in this case.

The Court of Appeal’s Judgment in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 was handed down on 9 June 2014, which, inter alia, recast the ‘Ice’ guideline for amounts over 600 grammes: effectively by following the equivalent heroin guidelines as laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 for larger quantities. The recast guidelines suggest a sentence of between 23 to 26 years for quantities of between 1,200 to 4,000 grammes of ‘Ice’.

However, at the time when the offence in the present case was committed, there were no tariff guidelines as to a quantity of methamphetamine hydrochloride over 600 grammes, other than a starting point of 18 years and upwards as indicated in the Ching Kwok Hung case.

At the material time in May 2014, the Abdallah guidelines did not apply in the instant case, as indicated by McWalters J (as he then was) in HKSAR v Chan Po Wah, CACC 179/2012 (Reasons for Judgment dated 26 March 2013) at paragraph 19.

Indeed, Stock VP (giving Judgment of the Court of Appeal) had this to say at paragraph 41 of the Tam Yi Chun case:

“41. We think that a just way of approaching the present application is to recognise that even if the Abdallah guidelines have in practice been applied by first instance judges to trafficking in very large quantities of ‘Ice’, that has not been the consistent approach at the appellate level...For present purposes, therefore, the applicant should have the benefit of the uncertainty and be sentenced on the basis that at the time of the offence of which she was convicted, the Abdallah guidelines did not apply to trafficking in very large quantities of ‘Ice’ and that a slightly lower tariff was applicable at that level.”

The Tam Yi Chun case itself involved the trafficking of 1,916 grammes of ‘Ice’. After stating the above approach, the Court of Appeal held at paragraph 43 of the Judgment that the proper starting point was 22½ years’ imprisonment, which should be aggravated by 2 years for the international element, with a resulting sentence of 24½ years’ imprisonment.

In my view, based on the quantity of the narcotic involved in the present case (2.36 kilogrammes of methamphetamine hydrochloride), the proper starting point for sentence should be 22 years and 9 months’ imprisonment.

This should be enhanced by 2 years for the international element in the present case [see: HKSAR v Abdallah (supra) at paragraphs 42 and 43]. This takes the starting point up to 24 years and 9 months’ imprisonment.

I shall give the defendant a full one-third discount for his guilty plea.

Accordingly, the defendant is sentenced to 16 years and 6 months’ imprisonment.