HKSAR v.s. Chun Wai

HCCC 194/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 194 OF 2017

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Before: Hon Wong J

Date: 1 December 2017 at 10.52 am

Present: Miss Chan Yuet-yee, Grace, SPP of the Department of Justice, for HKSAR

Mr Chang Peng, Geoffrey, instructed by S Y Fung, Solicitors, assigned by DLA, for the accused

Offence: Trafficking in a dangerous drug (販運危險藥物)

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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 before a magistrate to one charge of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts may be summarised as follows. The defendant was a passenger of a taxi which was stopped by police officers. Upon search of a plastic bag, which the defendant all along was holding, a paper bag containing cocaine was found. Upon further search, a cigarette box was found in his pant pocket. Inside the box were four plastic bags, three containing cocaine and one containing “Ice”. The total quantity of dangerous drugs in the possession of the defendant was 1,023.56 grammes of a solid containing 850.97 grammes of cocaine and 0.16 grammes of a crystalline solid containing 0.16 grammes of “Ice”.

The defendant is 29 years of age. He is single and was living with his family in a public housing flat. His father has passed away and his mother, now 66 years old, is still working. The defendant had worked as a transportation worker and a bike repairer.

The defendant has an appalling criminal conviction record. On 21 previous occasions he had been convicted. It is the second time he has been convicted for the offence of trafficking in dangerous drugs. In September 2013, for this offence he was sentenced to an imprisonment term of 16 months. At the same time, he was sentenced to 10 months’ imprisonment for possession of a forged identity card, and for the two offences, he served a total sentence of 20 months’ imprisonment.

The offence he committed most frequently is possession of dangerous drug. On eight previous occasions he was convicted for this offence. He was also convicted for assault-related offences on four occasions; one convicted subsequent to the present case. Other offences he had committed included copyright offence, blackmail, theft and obtaining property by deception. He committed the present offence after he had been granted bail for a case of possession of dangerous drug for which he has also been convicted and sentenced.

In mitigation, learned defence counsel, Mr Chang, asked the court to take into account that the defendant had pleaded guilty at the earliest opportunity. He also informs the court that the defendant’s mother, who is still very caring about the defendant and has been blaming herself for giving the defendant insufficient care, is suffering from deteriorating health.

A letter written by the defendant was produced in which the defendant expressed remorse and determination to turn over a new leaf and to pay filial to his mother. Mr Chang also asked the court to take into account the two sentences which were imposed after the arrest of the present case and which the defendant has fully served.

In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 317 are applicable to cases of trafficking in cocaine. R v Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLR 437, the Court of Appeal set out further guidelines for cases involving larger quantity. It was held that for cases involving narcotic content of 600 to 1,200 grammes, an imprisonment term of 20 to 23 years’ imprisonment should be considered.

In all the circumstances of the present case I do not consider there are any reasons to justify departure from the tariff. This is the second time the defendant has been convicted of the offence of trafficking in dangerous drug and for this I have considered whether the sentence should be enhanced. Taking into account only a sentence of 16 months’ imprisonment was imposed, the likelihood is that the quantity involved in that case would have been small. Having regard to HKSAR v Tsoi Man Chun, CACC 414/2015, I decide that no enhancement is called for.

The defendant possessed two types of dangerous drugs for the purpose of trafficking. This is normally an aggravating factor. However, in the light that the quantity of “Ice” was only 0.16 grammes, I also decide not to enhance the sentence for possession of two types of dangerous drugs. I am also of the view that no matter which calculation approach is adopted, this small quantity of “Ice” in no way affects the starting point.

I, however, have to take into account that the present case was committed shortly after the defendant had been granted bail for the possession of dangerous drug case. For this, I am of the view that the starting point should be enhanced by about 3 months. The ultimate starting point I adopt is 21½ years. The defendant pleaded guilty. He is entitled to a one-third discount. Having considered the whole circumstances, in my judgment this is the extent of discount the defendant is entitled to in this case.

Accordingly, the suitable sentence for the present case would have been 14 years and 4 months.

I agree that the court has to take into consideration the three sentences which the defendant has fully served. The two cases are the possession of dangerous drug case, which I have mentioned earlier, and a case of AOABH, which the defendant committed when he was in custody. For the possession of dangerous drug case a sentence of 6 months’ imprisonment was imposed and a 2-week suspended sentence was activated in full to run wholly consecutively. For the AOABH case, a 2-month imprisonment term was imposed to run wholly consecutively to the two mentioned sentences.

It is entirely appropriate that the sentence for the AOABH case should run wholly consecutively to the other two sentences. This is so also in relation to the present offence. I am also of the same view in relation to the activated suspended sentence. As regards the sentence imposed for the possession of dangerous drug case, having regard to HKSAR v Ngai Yiu Ching CACC 107/2011 and the principle of totality, I am of the view that a sentence of about 2 months is appropriate to reflect the additional culpability. It follows that the three matters call for a notional additional total sentence of 4½ months.

The defendant has served a total of about 8½ months for the three matters. It is no longer possible to take those matters into account by ordering part of the sentences to run concurrently to the sentence imposed in the present case. I consider it appropriate to adjust the sentence in the present case downward to give effect to the intended arrangement. In my judgment, the proper adjustment is 4 months.

Defendant, please stand up. For the said reasons, I sentence you to an immediate imprisonment term of 14 years for the present charge.