HKSAR v. Chan Wing Yin

HCCC 233/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 233 OF 2017

-----------------

-----------------

---------------------------------------------

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

---------------------------------------------

COURT:

The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The guilty plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 24 July 2017.

The Particulars of Offence provide that on 10 October 2016, outside Room 1120, Chiu Man House, Oi Man Estate, Hung Hom, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 49.1 grammes of a crystalline solid containing 47.5 grammes of methamphetamine hydrochloride.

The Summary of Facts admitted by the defendant provides inter alia that acting on information, at 0439 hours on 10 October 2016, police officers intercepted the defendant who was returning to Room 1120, Chiu Man House, Oi Man Estate, Hung Hom. Upon search, inter alia, two packets of suspected ‘Ice’ drug (subsequently certified to contain a total of 49.1 grammes of a crystalline solid containing 47.5 grammes of methamphetamine hydrochloride) were found. The defendant was arrested. Under caution, he said “Ah sir, I use them for my own consumption only.”

When the defendant was arrested, he had HK$2,820 and one mobile phone on him.

House search of the defendant’s home at Room 1120 was conducted and nothing of evidential value was found.

Subsequently, a video-recorded interview was conducted with the defendant, in which he refused to answer most questions.

The street value (in October 2016) of all the ‘Ice’ drug seized is HK$16,890.

The defendant admits and accepts that at all material times, he possessed the ‘Ice’ seized on him for the purpose of trafficking.

By way of personal background, the defendant is 25 years of age. He was born in Hong Kong in 1992. He has received education up to Secondary Form 3 level. Prior to his arrest, he worked as a freelance plumber with a daily wage of HK$800. I am told that, on average, he earned around $20,000 per month. The defendant got married in May 2015. He has a daughter who is now 2 years old.

The defendant has a total of four previous convictions, one of which was for possession of dangerous drug, for which he was sentenced to probation for 18 months.

By way of mitigation, Miss Flora Cheng submitted on behalf of the defendant that he had been addicted to the ‘Ice’ drug for some time. He was under additional financial burden with the birth of his daughter and on this occasion, the defendant bought the ‘Ice’ for resale. The defendant intended to resell the ‘Ice’ for making money. He would, however, reserve a small portion for self-consumption, although he is not able to specify the precise quantity. It seems to me that this claim is backed up by a urine test conducted on 12 October 2016, which show that the defendant was amphetamine positive.

It is indeed unfortunate in this case that the defendant will have to spend substantial time away from his very young daughter, but that is the inevitable consequence of him engaging in the business of drug trafficking. As it has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant would offer little mitigation in drug trafficking cases, which call for severe deterrence sentences in order to protect the public.

In the present case, the narcotic involved is 47.5 grammes of methamphetamine hydrochloride. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal held that for trafficking in between 10 and 70 grammes of the ‘Ice’ drug, the guideline starting point after trial should be 7 to 11 years’ imprisonment. In my view, following the guidelines in the Tam Yi Chun case and purely based on the quantity of narcotic involved, the proper starting point for sentence in the present case should be 9 years and 6 months’ imprisonment.

Taking into account all the circumstances of this case, I am prepared to give a slight discount for the defendant’s claim that a part of the drug in question was for his own consumption. However, the discount should only be 3 months because (i) the defendant does not claim that a “significant quantity” of the dangerous drug was for self-consumption; and (ii) the possession of drugs itself is an offence. That would take the starting point down to 9 years and 3 months’ imprisonment.

I shall give the defendant the full one-third discount from the starting point of 9 years and 3 months’ imprisonment for his guilty plea.

The defendant is accordingly sentenced to 6 years and 2 months’ imprisonment.