HKSAR v. Chung Wai Yin

HCCC 354/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 354 OF 2016

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

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COURT:

Defendant, on 29 July 2016, you pleaded guilty before a magistrate at the Eastern Magistracy to a charge of trafficking in a dangerous drug. You admitted that on 22 September 2015, at the Lo Wu MTR Station, New Territories, you unlawfully trafficked in 83.3 grammes of a mixture containing 55.7 grammes of heroin hydrochloride. Having pleaded guilty to this charge, you were committed to the Court of First Instance for sentence.

At about 6.20 pm on 22 September 2015, you were intercepted by police officers at the platform at the Lo Wu MTR Station. You were searched. An object was found hidden underneath your jeans. When asked what that was, you produced a packet containing three plastic bags of drugs which were stated in the charge. You were arrested. Under caution, you stated, “As for the ‘Sai Chai’, it was brought over from the Mainland to Hong Kong by me for making some money”.

In a subsequently held video-recorded interview, under caution, you accepted that the drugs found on you were heroin. A friend had offered you $1,500 to bring these drugs into Hong Kong from Shenzhen. You then hid those drugs in your underpants. You returned to Hong Kong and upon returning to Hong Kong, you were told to place the drugs at a flowerbed in Mong Kok. You had not yet received any reward.

The estimated street value of the dangerous drug seized was $65,974.

Defendant, you are 56 years of age, married with a son aged 5. You have 16 previous convictions. Nine are related to dangerous drugs and you have one similar for trafficking which you committed in 1998. Your last conviction was in 2011 for theft.

Your counsel, Mr Chan Ka-sing, has mitigated on your behalf. He has in fact submitted to me his written mitigation, setting out the reasons why you committed this offence. In brief, you were a parallel trader of goods into China and a casual transportation worker. You were earning approximately $7,000 to $8,000 per month. However, shortly before your arrest, the delivery work diminished and as the law enforcement had taken action against parallel trading activities, your income dropped to only about $2,000 to $3,000 per month. You therefore resorted to trafficking to earn money.

Mr Chan says that your early plea of guilty before the magistrate shows your remorse and, in fact, you had made frank admissions to the arresting officer.

The guideline case for trafficking in heroin is that as laid down in Lau Tak Ming. For this amount of heroin, that is 55.7 grammes, a starting point after trial of 8 years’ imprisonment would have been appropriate. Clearly, you had brought these drugs into Hong Kong from China and therefore you were importing these drugs and there was an international element.

The international element enhancement was considered in Chung Ping Kun, CACC 85/2014, the suggested level of enhancement for up to 250 grammes was one of 6 months’ imprisonment. I therefore consider 6 months to be appropriate. Therefore, the sentencing point, had you been convicted after trial, will be one of 8 years and 6 months’ imprisonment.

I accede to Mr Chan’s mitigation in that, although you have one previous similar conviction, that was committed some 18 years ago and due to the time since that conviction, I do not consider this to be an aggravating factor whereby your sentence should be enhanced. Furthermore, your last conviction was some five years ago. In the circumstances, therefore, your sentencing point should be one of 8 years and 6 months’ imprisonment.

You have pleaded guilty; this is your strongest mitigating factor and you shall be afforded a one-third discount. The resulting term to which you shall be so sentenced shall therefore be 5 years and 8 months’ imprisonment.