HKSAR v. Au Chun Kit, Eric

HCCC 221/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 221 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, Au Chun-kit, Eric, faces one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, that is Count 1, and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance, that is Count 2. He pleaded guilty to both counts and was duly convicted of both offences after he admitted to the Summary of Facts before me.

The Summary of Facts

The defendant was intercepted by a team of police officers when he opened the iron gate of Room 1307, Chun Sing House of Tin Ma Court. He was with a woman at the time. The officers were armed with a search warrant and they executed the same upon entry. Inside a drawer, the police found a plastic container containing the following:

Five transparent plastic bags containing which was later confirmed to be a total of 38.4 grammes of a crystalline solid containing 38 grammes of methamphetamine hydrochloride, with a street value of $12,634.

A bag containing what was later confirmed to be 6.62 grammes of cannabis in herbal form, with a street value of $708.

Two stacks of transparent zip-lock bags.

A plastic spoon.

Two pieces of paper each written with some Chinese words and numbers.

There was also an electronic scale in the drawer.

Under caution, the defendant said the stuff did not belong to him. The defendant admitted before me that at all material times, he trafficked the dangerous drug, that is the ‘Ice’, and he was in possession of the herbal cannabis.

Background and Mitigation

The defendant is 39 years of age. He is single. He is not a man of clear record, having appeared in court on three previous occasions. His previous convictions include that of assault, dangerous driving and driving-related offences, perverting the course of public justice, and he has one previous conviction of possession of dangerous drug and one of possession of equipment fit for consuming dangerous drug in 2013.

Mr David Boyton, mitigating on the defendant’s behalf, informed me that the defendant was in between jobs when he committed the present offence. He had been abusing ‘Ice’ for four years. Mr Boyton had instructions from the defendant that 10 per cent of the drug seized was for the defendant’s own consumption. However, as that allegation or assertion is not accepted by the prosecution and the defendant does not wish to give evidence on that, Mr Boyton did not pursue this issue any more, stating that he bore in mind that the amount of 10 per cent would not be considered a significant amount to reduce the sentence in any event.

Mr Boyton fairly considered that the only mitigation in the defendant’s case is his plea. He asked me not to enhance the starting point even though the defendant had one previous drug-related offence. I will deal with the other submission made by Mr Boyton in my sentence.

Trafficking in dangerous drugs is a serious offence. A person convicted of this offence, on indictment, is liable to a fine of $5 million and life imprisonment. The ‘Ice’ involved in this case is 38 grammes. According to the guidelines set by the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in between 10 to 70 grammes of ‘Ice’, the starting point after trial is between 7 to 11 years.

Having considered the circumstances of this offence and having considered the defendant’s background, I am of the view that a starting point of 9 years is appropriate. I will not enhance this starting point. The case was committed for trial on 6 May 2016, that is before the judgment of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, was handed down on 2 September 2016. I will give the defendant the full one-third discount. The sentence for trafficking in a dangerous drug, that is Count 1, is therefore one of 6 years.

As for the possession of the 6.62 grammes of herbal cannabis, after considering the cases submitted by Mr Boyton, that is HKSAR v Castano Arango Jose Reinel, CACC 174/2014, that is a fine of $10,000 for possession of 9.57 grammes of herbal cannabis, and HKSAR v Touray Edrisa, CACC 124/2010, a fine of $2,000 for the possession of 0.6 gramme of herbal cannabis, in my view, a fine in the region of $8,000 is appropriate.

Bearing in mind that had the herbal cannabis been part of the ‘Ice’ in the trafficking charge, it would have made no difference to the starting point for Count 1, the sentence for Count 2 should be concurrent with the sentence imposed on Count 1.

To achieve this aim, I would follow what the Court of Appeal have done in the case of Castano. That is, I will impose a fine of $8,000 for this count, Count 2, and in default of payment, a period of 2 weeks’ imprisonment to be served concurrently with the sentence imposed on Count 1.