HKSAR v. Yu Cham Sun

DCCC 462/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 462 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to trafficking in a dangerous drug and failing to surrender to custody without reasonable cause.

2.The facts of this case are straightforward.

3.On 7 March 2016 police officers on patrol in Sham Shui Po District saw the defendant at about 8.30 in the evening acting furtively.  The defendant was pressing his hand on his front trouser pocket. This action made a police officer suspicious.  The defendant was stopped and searched.  The police officer’s suspicions were very accurate and in the defendant’s right front trouser pocket the police found a bag of drugs.  More specifically, they found a resealable plastic bag that contained three other resealable plastic bags containing “Ice”.

4.The “Ice” of this trafficking charge weighed 8.48 grammes, which was a crystalline solid containing 8.34 grammes of methamphetamine hydrochloride.

5.Under caution, the defendant told the police that he had bought three bags of drugs.  Two bags were to be for his own consumption and he was going to gift the third to a friend. 

6.In a subsequent video recorded interview, he elaborated further and told the police that he had bought the drugs that evening for $1,500 and that he had had a previous drug addiction problem.  He had stopped consuming drugs for a while, but recently before his arrest he had taken up the habit again because he was unhappy.  He told the police that he consumed “Ice” using an “Ice” pipe or bong.  He co-operated with the police after his arrest.

7.The street value of the “Ice” in this case was estimated to be about $2,500.

8.After his arrest, his home was searched and nothing suspicious was found.  That included any apparatus fit and intended for inhaling “Ice”.

9.Today, the defendant does not seek to submit that part of the dangerous drugs was for self-consumption.  He fully admits that all three packets can be described as drugs for trafficking.  He was told to carry or keep the dangerous drugs and await instructions, but before he received any instructions he was arrested.  He said that he committed this offence out of greed, for financial remuneration, but before he was arrested he had not yet been paid.

10.The defendant is now 25 years old.  He lives with his parents and before his arrest was a transportation worker earning about $12,000 a month.  He was married and is now separated from his wife.  They have a 2-year-old child and both are living apart from the defendant.  At home, where he lives with his parents, he now has a girlfriend or a fiancée cohabiting with him and they have a 4-month-old child.

11.The defendant has responsibility for two children.  He needs to realise the enormity of that responsibility and become a responsible father.

12.I have had a letter from the defendant expressing his remorse, explaining why he committed this offence, and stating a determination to turn over a new leaf and become a good father.

13.I hope what he has put in his letter is something he truly means to follow through with.

14.The best mitigation today is defendant’s plea of guilty. 

15.He is not a man with a clear record.  He has two previous drug-related convictions in 2009, where on the same day in the same case he was convicted of possession of drugs and possession of equipment fit and intended for smoking, injecting or inhaling.  He was only 17 at the time and sentenced to a probation order.

16.From the record, I can see he was also charged in 2012 with possession of dangerous drugs and sentenced to a Drug Addiction Treatment Centre order.  It seems from the record that the magistrate ordered the conviction not to be recorded.

17.Mr Tsui on behalf of the defendant has said all he can say in mitigation.

18.Trafficking “Ice” has guidelines where sentencing is concerned.  “Ice” can be described as the most dangerous drug on the streets.  It is highly addictive and the court’s view is that sentences should be heavy to deter those trafficking “Ice”.

19.The Court of Appeal in the Attorney-General v Ching Kwok Hung [1991] set out tariffs.  This was also confirmed in HKSAR v Tam Yi Chun, CACC 524/2011.  Where up to 10 grammes is trafficked, a 3- to 7-year starting point would be appropriate. 

20.Here, 8.34 grammes mathematically attracts a 6 year and 3 to 4 months’ starting point.  That demonstrates the seriousness of this offence.

21.Defendant, stand up please.

22.I do take into account everything said on your behalf and although you have previous convictions they are not many and the last time you appeared for a drug-related offence was in 2012.  Moreover, this is your first trafficking-related offence.  I accept there is no evidence you were the mastermind, but a courier is still a vital piece of the machinery involved in trafficking drugs in Hong Kong.  Lastly, I take into account your honesty in saying that you did traffic all of the “Ice” in this case.

23.Having taken all those factors into account, for Charge 1, I will take a starting point of 5 years’ imprisonment.

24.You have pleaded guilty.  You are entitled to a discount of one-third.

25.After that discount is applied, for this offence, Charge 1, you are sentenced to 3 years and 4 months.

26.For Charge 2, failing to surrender to custody, you had no good reason to fail to attend court as required.  I will take a starting point of 3 months’ imprisonment.

27.You have pleaded guilty.  You are entitled to a discount of one-third.

28.After that discount is applied, for Charge 2, you are sentenced to 2 months’ imprisonment.

29.These two offences are wholly separate and distinct from each other.

30.However, taking into account the totality principle, I will order that 1 month of Charge 2 be served consecutively to Charge 1 and the other month concurrently.

31.Therefore, the total sentence here is 3 years and 5 months’ imprisonment.

COURT: Do you understand?

DEFENDANT: Understood.