HKSAR v. Yeung Chi Tim

HCCC 172/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 172 OF 2017

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

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COURT:

The defendant pleaded guilty to one count of trafficking in a dangerous drug before me. The offence took place on 29 April 2016 and it concerned 29.54 grammes of a crystalline solid containing 29.25 grammes of methamphetamine hydrochloride.

As around 3.43 pm on the day in question, police officers arrived at a hotel in Mong Kok to handle a case of assault. Police officers found the complainant and the defendant, ie, the suspect. The defendant was taken to Mong Kok Police Station.

A personal search was conducted on the defendant. A black cloth bag was found inside the defendant’s underpants. Inside the black cloth bag, there were four plastic bags containing a total of nine plastic bags of suspected dangerous drugs subsequently confirmed to be 29.54 grammes of a crystalline solid containing 29.25 grammes of methamphetamine hydrochloride, and 13 transparent resealable plastic bags. The defendant was also found in possession of $592.80 and two mobile phones.

The defendant was arrested for possession of a dangerous drug. Under caution, the defendant remained silent.

Police officers escorted the defendant to the Accident & Emergency Department of Kwong Wah Hospital for suspected drug overdose on the same day. Urine test was conducted on the defendant which indicated a positive result for amphetamine, methamphetamine, nimetazepam and nitrazepam.

In April 2016, the estimated retail value of the seized drugs was $8,951.

The defendant now admits and accepts that he was trafficking in the dangerous drugs seized in this case.

The criminal record of the defendant shows that he has a total of 17 previous convictions. He was first convicted of three counts of robbery in 2006. His last conviction was in August 2016. He was convicted of one count of assault occasioning actual bodily harm. He was sentenced to 2 months’ imprisonment. I am told that the assault charge took place on the same day that the trafficking offence took place. The defendant has one previous for possession of a dangerous drug which took place in 2012.

The defendant is now 26 years old. He received education up to Form 1 in Hong Kong. He was unemployed at the time of his arrest. The defendant is married but his wife resides ordinarily in the mainland. The defendant lived with his family members in Hong Kong. Mr Wong told me in mitigation that the defendant’s wife is a PRC resident and she resides in China. The defendant, before his remand, lived with his parents and his siblings in Hong Kong.

Mr Wong told me the defendant was sentenced to 2 years’ imprisonment in 2014 for an offence of burglary. After the defendant’s release in February 2016, he met some undesirable peers and he mingled with them. The defendant was induced to toy with drugs and he was induced to traffic in them. The defendant was told to sell dangerous drugs to his friends if they needed dangerous drugs.

Mr Wong submitted that the trafficking in dangerous drugs was not solely for financial gain. The defendant purchased the dangerous drugs in question partly for his own consumption and partly with a view to sell them to others to gain some money to sustain his drugs addiction. The defendant had spent $2,000-odd in purchasing the drugs in question.

For the defendant’s addiction, Mr Wong told me that the defendant would consume 1 gramme of ‘Ice’ each day and Mr Wong told me half of the drugs seized in this case was for the defendant’s own consumption. Mr Wong submitted that it is not unreasonable for the defendant to claim that he intended to consume half of the drugs seized. The Summary of Facts shows that the defendant was committed to hospital for suspected drug overdose. An urine test yielded a positive result.

Mr Wong drew my attention to the case of Tam Yi Chun and Mr Wong submitted that given the quantity of ‘Ice’ involved in this case, ie, 29.25 grammes, a starting point of 8 years’ imprisonment is appropriate. The defendant deserves a one-third reduction for his timely plea, Mr Wong submitted, and for the fact that the defendant intended to consume a significant portion of dangerous drugs seized, the defendant should be given an additional reduction. Mr Wong drew my attention to the fact that the defendant was sentenced to 2 months’ imprisonment for the offence of assault occasioning actual bodily harm which took place on the same day as the trafficking offence took place.

In sentencing the defendant, I have borne in mind the nature and the quantity of the drugs involved, the facts of this case as admitted by the defendant and all the matters urged on the defendant’s behalf by Mr Wong. I agree with Mr Wong’s submissions that given the quantity of ‘Ice’ involved in this case and applying the tariff as set down by the Court of Appeal in Tam Yi Chun, a starting point of 8 years’ imprisonment is appropriate.

The defendant should be given a full one-third reduction for his timely plea. That would bring the starting point down to 5 years and 4 months’ imprisonment, ie, 64 months. I am prepared to accept that the defendant intended to consume a significant portion of the dangerous drugs seized, though not as much as 50 per cent as Mr Wong suggested.

In coming to the conclusion as I do, I have borne in mind the fact that the urine test after the defendant’s arrest yielded a positive result and the fact that the defendant has a previous conviction for possession of dangerous drug in 2012. I am prepared to afford the defendant an additional reduction of 10 months because of the findings I am prepared to accept, ie, the defendant intended to consume a significant portion of the drugs seized. That will further bring the sentence down to 54 months’ imprisonment.

The defendant was sentenced to 2 months’ imprisonment on 11 August 2016 for an offence of assault occasioning actual bodily harm. The defendant committed the assault charge on the same day he committed the trafficking offence. In fact, the Summary of Facts revealed that the police officers attended the hotel in question to handle a case of assault and they found the complainant and the defendant there.

If the assault occasioning actual bodily harm offence and the trafficking offence were handled and dealt with together by the same judge, the defendant would have the benefit of having both matters sentenced by the same judge and he would have benefited from the totality principle had both matters been sentenced by the same judge. But the defendant was sentenced already to 2 months’ imprisonment in August 2016 and he could not benefit from the totality principle as a result.

Doing the best I can, I would allow the defendant an extra 1 month reduction to give effect to the totality principle. That extra 1 month reduction would bring the sentence further down to 53 months’ imprisonment. I can see no other mitigating factors which can further reduce the sentence.

For the reasons given, I sentence the defendant to 53 months’ imprisonment.