HKSAR v. Chung Tat Piu

HCCC 252/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2016

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

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COURT: The defendant has pleaded guilty at the earliest opportunity in the Eastern Magistracy to the two counts on the indictment and was committed to this court for sentence. These are two counts of trafficking in a dangerous drug committed on the same day, that is, 26 November 2015. And in the 1st count the drugs were namely 20.3 grammes of a crystalline solid containing 19.5 grammes of methamphetamine hydrochloride. The 2nd count involved 187 grammes of a crystalline solid containing 181 grammes of methamphetamine hydrochloride.

The facts which have been agreed to by the defendant is that on 26 November 2015 police officers upon seeing the defendant leaving a building at No 413 Castle Peak Road, Tsuen Wan, New Territories, in Hong Kong, intercepted him. They followed him until he was outside No 423-427 and - and then intercepted him. Upon a search of his person, the dangerous drugs, which is the subject matter of Count 1, were found on him. After caution the defendant admitted that he was taking the “Ice” to someone and there were more at his home. Thus, the police then escorted the defendant to his home, which was on the 3rd floor of No 413. And using the defendant’s keys, they managed to open the premises and a room within those premises and found the drugs, which is the subject matter of the 2nd count, inside. These drugs were contained in six plastic bags. He admitted under caution that these drugs were his and that he was unemployed. The retail value of these drugs in November 2015 was around HK$61,367.

The defendant is aged 49 and has a total of 28 previous convictions, 12 of which are drug-related. His last trafficking in dangerous drugs offence was in 2013, for which he was sentenced to over 7 years’ imprisonment. After he served that sentence and he was released on post-imprisonment supervision, he committed the last offence which was for possession of dangerous drugs. He was given bail for that possession of dangerous drugs offence and he jumped bail. And it was during this period, that he committed the present offence. He then was sentenced to the possession of dangerous drugs, to 4 months’ imprisonment. He finished serving the 4-month sentence in February this year. And since then he has been on remand till today.

Now, Mr Grounds, who appears on his behalf in mitigation, has indeed said everything he could say and more, on his behalf. Now, on that I must say a few words in praise of Mr Grounds because what to any other barrister would have been a simple case in mitigation, he bothered to look into the case properly and bring out as much as he can, things that he considered in favour of his client. This is a quality which is to be admired in a barrister and it is heartening to see that being done in this court. Perhaps the delivery, or presentation could have been tempered with slightly less emotion and excitability, would have made been better in court. In fact the only mitigating factor that I can see and - and the most persuasive is the fact that the defendant had pleaded guilty at the earliest opportunity. As for the defendant’s motive for committing the present offence, which he says he was trying to raise money because of his mother’s illness, well, that is not a mitigating factor.

Mr Grounds rightly identified the sentencing range in this case, relying the case of Tam Yi Chun, a case where the Court of Appeal in 2014 set down guidelines for large quantities of methamphetamine hydrochloride. However, I must point out that Mr Grounds’ submission in his written mitigation that it was a sentencing policy of these courts to adopt a strict mathematical approach in assessing the sentence by the weight of the narcotic is incorrect. The Court of Appeal stressed that these are suggested guidelines and there is no sentencing policy for a strict mathematical approach. Each case has to be looked at as far as the background of the case, the facts which have been admitted, the defendant’s background when the trial or sentencing judge is assessing a proper sentence to be handed down.

Mr Grounds in effect in his submissions has put forward three particular grounds of mitigation. He submitted that this court should take into consideration that part of the drugs were for the defendant’s own consumption and that this court should also take into account his assistance to the police in taking the police to his place of residence where the drugs in Count 2 were found. And his third main ground was that as far as “time” -- what he terms in inverted commas I will say “time running” is concerned, Mr Grounds submitted that my sentence today would begin from today rather than be dated from the remand period and that the defendant would lose six months of remand because it would be counted as his post-imprisonment supervisory period rather than a strict remand in prison awaiting sentence.

Now, dealing with the most simple of the - the grounds first. As for his self-consumption, it is a fact that the -- I - I do not -- I accept -- I do not disagree that the defendant is an addict. As Mr Grounds pointed out, upon his arrest it -- I think a test, a urine test was done and it was found that he did have drugs in his urine. Against that background, I also have to consider the fact that the defendant told the police that he was unemployed at the time and therefore although some of the drugs were for his own consumption, there is also the latent risk factor that because of his financial difficulties at the time, which he also pleaded in mitigation, that he would be tempted to sell the drugs which he set aside for his own consumption. So I would give a discount of one-and-a-half years under this head, for self-consumption.

Now, as far as the aspect of time running is concerned, Mr Grounds submitted that in an ordinary case, after a defendant has been arrested and whilst on remand awaiting sentence, when the judge sentences, the period in remand is taken -- the period of sentence is dated from the time when he was kept in remand. But in this case the defendant, after serving his sentence, which was handed down in 2013 for trafficking in dangerous drugs, he was then released from prison, but under a post-imprisonment supervision order. Whilst he was on this post-imprisonment supervision order, he committed the offence in 2015 - in 2015, the last offence of possession of dangerous drugs. He was granted bail. He jumped bail. And it was during this period that he committed this present offence.

So upon his arrest for this offence, he was then brought up before the Magistrate’s Court for the possession of dangerous drugs offence for which he was given 4 months’ imprisonment. He finished serving that sentence in February this year. But he was still under the post-imprisonment supervision order until today. So Mr Grounds’ argument is that this court, in assessing sentence, should take that into consideration, that is, that his sentence which I will hand down today would start from today rather than from February this year and therefore he has lost six months of his remand period. I do not agree that the defendant should be given any discount in relation to this. The aggravating factor that he committed this present offence whilst on bail for his possession offence would offset the loss of his six months in remand.

Now, Mr Grounds further -- finally submitted that - that because of the defendant’s assistance to the police in this case, the police were able to find the drugs at his home sooner than would otherwise have been the case. And therefore he should be given a discount for his assistance to the police as in the case of Psy. And so Mr Grounds relied on the case of Psy, which is 2016, and this is a Court of Appeal judgment handed down on 16 June this year. Now, in that case Psy was intercepted on the street as he walked out of the Chung Hing Building in Kowloon City. And on his person was found cocaine. Under caution he admitted to the police that someone called Peter had asked him to go upstairs, that means the Chung Hing Building, to collect a package of “coke” for delivery to others.

On Psy’s person were found keys, cash and mobile phones, and so Psy led the police to the premises on the 2nd floor of Chung Hing Building and the police used one of -- used the keys found on the defendant, Psy, to open the doors to the premises. Inside those premises were found drug manufacturing paraphernalia and a bag found to contain over 1,000 grammes of cocaine hydrochloride and another bag containing about 650 grammes of cocaine, which is the subject matter of Charge 2 in Psy’s case. Having been cautioned, the defendant, Psy, then said that he was not involved in the manufacture of dangerous drugs, that he was only responsible for taking the bag of cocaine hydrochloride to this premises where it had been found.

Now, the Court of Appeal considered that Psy was entitled to a small further discount for the -- assisting the police officers to find and seize the dangerous drugs sooner than they would otherwise have done, and admitting his possession of those dangerous drugs, and this is at paragraph 18 of the judgment. So therefore Mr Grounds submits that in this present case the defendant should be given a small discount because of his assistance to the police by leading the police to his home and discovering the drugs in Count 2 earlier than otherwise would have been the case. As I have already mentioned, the Court of Appeal took into account the fact that he led the police to the place and -- so the police could seize the drugs earlier -- sooner than they otherwise would have done, and admitting his possession of those dangerous drugs. Now, those were the matters that influenced the Court of Appeal in deciding that a further smaller discount should be given.

I can see the Court of Appeal’s reasoning in Psy’s case because the premises in which the drugs were found was not the defendant, Psy’s premises, rather it was premises belonging to somebody else and but for the fact of Psy leading the police to discover those drugs earlier than expected, those drugs may be subsequently moved before the police ever got there. So therefore Psy’s cooperation in his case was particularly important. But in this case this was the defendant’s home where those drugs in Charge 2 were found and there is no evidence that it -- the premises were shared -- the room which the drugs were found in were shared by other people. So whether it was sooner or later, the police would nevertheless have been able to find the drugs in any case. But of course the fact that he led the police to his home to find those drugs would -- is a mitigating factor as an indication of his remorse. And this would be included in the one-third discount which he would be getting.

Now, getting to the sentence itself, as has been submitted by Mr Grounds, the guidelines have been laid down in Tam Yi Chun and the suggested guideline is that for trafficking in between 70-300 grammes, the guideline sentence would be 11-15 years’ imprisonment after trial. In this case, the 1st count of 19.5 grammes of methamphetamine hydrochloride and the 2nd count, 181 grammes, together would make a total of 200.5 grammes of methamphetamine hydrochloride. That would merit a starting point of between 13.5-14 years’ imprisonment after trial.

I would, in this case, take a starting point of 14 years’ imprisonment because of the defendant’s poor record and I would deduct it by 18 months for the defendant’s self-consumption. So leaving therefore a sentence of 12.5 years and I give the defendant the full one-third discount so the sentence for the total amount of drugs would be 8 years and 4 months. So I would sentence the defendant in the following manner: on Charge 1, he is sentenced after discount to 4 years’ imprisonment, and on Charge 2 after discount to 8 years and 4 months’ imprisonment. And I have to look at the totality principle and taking into account everything that I have said I will order that the sentence in Charge 2 be concurrent to the sentence in Charge 1, so the defendant will go to prison for a total of 8 years and 4 months.