HKSAR v. Chow Kin Wah

HCCC 91/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2017

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

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COURT: Defendant, you pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Your pleas of guilty were entered before a magistrate sitting at the Eastern Magistracy on 13 March 2017. As a result of your pleas of guilty, you have been committed here to the Court of First Instance to be sentenced.

The two charges were committed on the same date, that is 30 May 2016, also at the same place, that is outside No 51 Kimberly Road, Tsim Sha Tsui, Kowloon.

On 30 May 2016, police officers found you sitting alone in the driver’s seat of a vehicle which was stopped outside No 51 Kimberly Road, Tsim Sha Tsui. At about 3.37 am, the officers approached you in the vehicle and requested to conduct a search upon you. As you were about to open the driver’s door, you were observed to have dropped something from your fist onto the ground next to the driver’s seat door. After you had alighted from the car, an officer picked up a packet from the floor and it was confirmed to be the drugs as stated in the first charge, which is 0.78 grammes of a solid containing 0.62 grammes of cocaine.

You were arrested and cautioned and you said that the packet of cocaine was for your own consumption and that you were sorry. Nothing suspicious was found on your body.

A search was then conducted on the vehicle and a plastic bag was found inside a compartment on the right of the steering wheel. Inside this plastic bag were a further three bags of drugs and eight empty transparent resealable plastic bags. In one of the plastic bags with drugs, it contained 2.46 grammes of a solid containing 1.9 grammes of cocaine, and the other two plastic bags with the contents of methamphetamine hydrochloride, otherwise known as ‘Ice’, with one bag containing 27.3 grammes of a crystalline solid containing 27 grammes of methamphetamine hydrochloride and the other bag containing 12.8 grammes of a crystalline solid containing 12.6 grammes of methamphetamine hydrochloride.

Those drugs form the subject matter of the drugs in the 2nd charge of which the total is 2.46 grammes of a solid containing 1.91 grammes of cocaine and 40.1 grammes of a crystalline solid containing 39.6 grammes of methamphetamine hydrochloride.

You were arrested and cautioned for trafficking in dangerous drugs and, under caution, you said the drugs, three packets, were for your own consumption.

The retail value of the drugs seized, that is the cocaine, was estimated to be about $3,438 and the ‘Ice’ was to the value of $12,110, the total value there being approximately $15,548.

At the time, you were unemployed and reliant on Comprehensive Social Security Assistance, living together with your two daughters aged 15 and 14 respectively.

Mr Fu Chong-sang, your counsel, has informed me that for some time now, you have been a drug dependant. Initially, the mitigation was that some of the drugs were for your own use but you are now no longer pursuing that mitigation and, in fact, as the Summary of Facts stated and which you admitted, you now accept and admit that the drugs were for the purposes of unlawful trafficking.

You are 39 years of age and you have 26 previous convictions of which five are related to dangerous drugs, most of those being for possession of dangerous drugs. That does reflect your previous dependency on drugs.

Mr Fu has submitted his written mitigation and has referred to the relevant trafficking guideline cases in both ‘Ice’ and cocaine. The case for ‘Ice’ is the case of Tam Yi Chun, CACC 524/2011, and for cocaine, that of Lau Tak Ming [1990] 2 HKLR 370. The drugs that you had been trafficking in were, of course, cocaine and ‘Ice’.

In sentencing you, defendant, I shall take a combined approach for both charges, and then sentence you for trafficking on all the drugs in Charges 1 and 2, and then sentence you separately on each charge.

Defendant, as you, I am sure, are aware, there are few mitigating factors which can lessen the severity of the charge of trafficking. Your greatest and strongest mitigating factor is your plea of guilty at the earliest opportunity and for that, you will receive the one-third discount.

Mr Fu has referred me to the letters that you and your sister and daughters have written, asking this court for leniency. I have taken those matters into account. It is very unfortunate, defendant, that despite your fairly young age of 39, you have a long list of convictions already. You have said that you want to go out earlier to look after your children, and of course, I am sure that your sister also wants you to do so, so that you can also lessen the burden upon her. I am sure that this is not an example that you wish to set for your two young girls. You are effectively still young and seemingly look very healthy. It is never too late to turn a new leaf. I sincerely hope you will do so and be there for your children.

However, as you know, these guidelines that the Court of Appeal laid down for trafficking are fairly strict guidelines and save for your plea of guilty, there are no further mitigating factors.

Now let me turn to the combined approach in sentencing you for both Charges 1 and 2. I shall take the totality of the drugs. In Charge 1, there was 0.62 grammes of cocaine. In Charge 2, there was 1.91 grammes of cocaine. That makes the total cocaine in both charges of 2.53 grammes. As for the ‘Ice’, that is only in Charge 2, and the total of methamphetamine hydrochloride is 39.6 grammes. In respect of the drugs themselves, cocaine and ‘Ice’ are similar and similar guidelines apply. I shall therefore add up these two quantities and the total of those two quantities equals to 42.13 grammes and I shall take that as the value of ‘Ice’.

Defendant, had you been convicted of that quantity of ‘Ice’ after trial and following Tam Yi Chun, the appropriate starting point would have been one of 9 years’ imprisonment, and giving you full credit for your plea of guilty, of one-third, you shall be sentenced to 6 years’ imprisonment.

I shall now sentence you individually for each offence and reflect the totality of the sentence.

On Charge 1, there was 0.62 grammes of cocaine. Had you been convicted after trial, an appropriate starting point would be one of 2 years’ imprisonment. Giving you full credit for your plea of guilty, on that charge, you will be sentenced to 1 year and 4 months’ imprisonment.

On Charge 2, there was 39.6 grammes of ‘Ice’ and 1.91 grammes of cocaine and adding those two sums together, that would be equivalent to 41.5 grammes of ‘Ice’. If you had been convicted and sentenced after trial, an appropriate starting point would have been one of 9 years’ imprisonment. Giving you full credit for your plea of guilty, on Charge 2, you shall be sentenced to 6 years’ imprisonment.

To reflect the totality, I shall order Charge 2 to run concurrent to Charge 1. That makes a total term of 6 years’ imprisonment.