HKSAR v. Chu Chun Ho

HCCC 263/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 263 OF 2017

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Before:  Hon Zervos J in Court

Date of Hearing:  12 October 2017

Date of Sentence:  12 October 2017

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REASONS FOR SENTENCE

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1.On 12 October 2016, the defendant entered Hong Kong from mainland China at Lok Ma Chau Control Point. When he was coming through customs clearance a bag he was carrying was x-rayed by customs officers and it was discovered that it contained 2 plastic bags with 56 g of a solid containing 45 g of heroin hydrochloride and one plastic bag with one kilogramme of a crystalline solid containing 985 g of methamphetamine hydrochloride, also known as Ice. The estimated street value of the drugs at the time of the offence were $42,056 for the heroin and $344,000 for the Ice, making a total value of the drugs of $386,056.

2.After the defendant had been arrested and cautioned, he was asked what was in the bags and he said: “They are Ice.  I don’t know about the two smaller packets.”  He explained that: “I carry them for others, for $3,000 reward.”  He further explained that he did not know the destination of the delivery as he was to wait for instructions from someone called “Ah Mi”.  He cooperated with the customs officers and voluntarily participated in an attempted controlled delivery but no one turned up.

3.The customs officers also found on the defendant, a mobile phone and a quantity of cash, consisting of HK$9,595 and some minor amounts of other currencies.

4.In a subsequent video recorded interview, the defendant explained that he was unemployed and that he earned his living by carrying parallel imported household goods from Hong Kong to mainland China. He said that he resided in a rented flat in Shenzhen and his monthly rental was $2,500.

5.The defendant is 22 years of age.  He grew up in Hong Kong and was educated up to Form 5 level.  He previously worked as a storage worker in a publishing company in Tuen Mun earning approximately $10,000 per month.  His father is a decoration worker.  His mother had died of cancer when he was in Form 3.  He is the only child, and I am told that the death of his mother had a traumatic effect on him.  He left school early and worked as a storage worker but lost his job in early 2015.  He was unable to afford the lifestyle in Hong Kong and had to move to Shenzhen where rental accommodation was cheaper.  He worked as a parallel goods trader earning about $9,000 a month. 

6.The defendant has a clear record and has not abused drugs in the past.  Letters have been submitted to me from his family members who all speak highly of him.  From all accounts, the defendant is a decent young man who is respectful and pleasant to all around him. 

7.I accept the circumstances and description of the defendant.  It is tragic that someone who is of a young age, and has hitherto been respectful and law abiding, should find himself involved in such a grievous offence and facing such a severe penalty.

8.The defendant when apprehended cooperated fully with the customs officers.  He immediately admitted the offence and participated in a controlled delivery.  The controlled delivery was unsuccessful but that was due to no fault of the defendant.  After he had been apprehended, he received a message on his mobile phone asking where he was. Through an exchange of messages, he was told to go to Mongkok and wait for someone at a McDonald’s restaurant.  This was all done under the control of customs officers.  He also received telephone calls requesting him to go to another place but he was instructed by the customs officers to stay where he was.  However, no person turned up and eventually the operation was called off.  I am told that the defendant fully cooperated with customs officers and clearly from the circumstances of what took place, actively participated and put himself at risk during the operation.  In my view, he is deserving of a discount to his sentence for the nature and degree of his involvement in the controlled operation.  See HKSAR v Smit Hector Edward [2017] 1 HKLRD 287.

9.The defendant pleaded guilty to the offence of trafficking in dangerous drugs in relation to the drugs that he sought to bring into Hong Kong from mainland China at the earliest opportunity.  He admitted that he was trafficking in the drugs.  After a series of adjournments in the committal proceedings in the Magistrate’s Court, the defendant on 7 August 2017 he entered his plea of guilty.  He was committed to this Court for sentence.  By his plea in the Magistrate’s Court, the defendant is entitled to a full one third discount to his sentence.  See HKSAR v Ngo Van Nam [2016] 1 HKLRD 1.

10.The tariff guideline for trafficking in Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  It fixes a tariff for a narcotic content of over 600 g of Ice of 20 years’ imprisonment and upwards and further provides that for very large quantities of over 600 g the principles laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 should apply.  So far as material, it fixes a tariff guideline for 600 to 1,200 g of Ice of 20 to 23 years’ imprisonment. 

11.The tariff guideline for heroin is similar to the tariff guideline for Ice except there is a slight difference between the two in the bands below 600 g, although they are the same for 600 g or more.  See R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.  I have taken a combined approach in sentencing the defendant which involves calculating the applicable sentence by combining the quantities of the two types of drugs.  The narcotic content of Ice is 985 g and the narcotic content of heroin is 45 g which makes a total of 1,030 g of narcotic content.  Applying the sentencing tariff for Ice, which is the same as the one for heroin when the narcotic content is over 600 g, a starting point of 22 years and 4 months’ imprisonment is calculated on an arithmetical basis.  I will round it off to 22 years’ imprisonment.  This slight reduction is in recognition of the defendant’s young age, cooperativeness at the time of his apprehension and hitherto clear record. 

12.Bringing drugs into Hong Kong from mainland China is considered to constitute an international element.  The issue of enhancement for this aggravating factor has been addressed in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197; and HKSAR v Chung Ping Kun [2014] 5 HKLRD 12.  The cases suggest levels of enhancement for amounts above 1 kilogramme of not less than 2 years’ imprisonment.  The starting point will be enhanced by 2 years to 24 years’ imprisonment. 

13.The defendant is entitled to a one third discount for his plea of guilty, but he is also entitled to a further discount for the assistance he rendered the authorities in the controlled delivery.  I will increase the discount by 4 percent to 37.33 percent.  A discount of 37.33 percent from the starting point of 24 years’ imprisonment results in a sentence of 15 years’ imprisonment. 

14.There being no other mitigating factors warranting any discount to the sentence, the defendant is accordingly sentenced to 15 years’ imprisonment. 

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Ms Vivien Chan Man Wai, instructed by King & Co., assigned by Director of Legal Aid, for the defendant