HKSAR v. Choi Yiu Cho

HCCC 352/2017
[2018] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 352 OF 2017

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

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COURT:

Defendant, on 18 September 2017, you pleaded guilty to a charge of trafficking in dangerous drugs before a magistrate sitting at Eastern Magistracy. You admitted to having unlawfully trafficked in 37.6 grammes of a crystalline solid containing 37.3 grammes of methamphetamine hydrochloride and 46.24 grammes of a solid containing 17.65 grammes of ketamine. You admitted that this offence was committed on 21 February 2017, outside Shops No 1 and 2, Blossom Garden Shopping Centre, Tuen Mun, New Territories.

On that day, police officers who were conducting an anti-dangerous drugs operation saw you at about 10.40 pm, outside the shop at Blossom Garden which was at that time operated by McDonald’s. They observed you entering McDonald’s and then leaving it about 30 seconds later and then continue to remain outside McDonald’s. Approximately two minutes after that time, the police officers intercepted you. A body search was conducted on you and inside the left pocket of your jacket you were wearing were found the drugs as I have mentioned in the charge. Those drugs were contained in 10 separate plastic resealable bags of slightly varying quantities and sizes.

The estimated retail value of the ‘Ice’ that was seized was $11,656 and the estimated retail value of the ketamine seized was $9,942 which makes a total value of drugs at about $21,598.

At the time you were arrested at cautioned. You said that these drugs, the ‘Ice’ and ketamine, were for your own consumption and you asked the officers to give you a chance. You have thereafter admitted through your plea of guilty and admission of the facts that you were in fact trafficking in these dangerous drugs.

Defendant, you are 29 years of age and you have five previous convictions. Of those five, three are related to dangerous drugs. There is one similar conviction. That is one of trafficking in dangerous drugs to which you were sentenced in September 2013 to 28 months’ imprisonment. On that same day, you were also sentenced for possession of dangerous drugs to a term of 8 months’ imprisonment. You were required to serve a total sentence of 31 months.

You were born in Hong Kong and when you were a baby, your parents separated. You then lived with your father and stepmother. In the early 80s, you immigrated to join your mother in the United States of America and stayed there, going to high school until you returned to Hong Kong in 2006 when you were 18 years of age. It is apparent that upon your return to Hong Kong, you then started to get in trouble with the law. Your first conviction came about two years later in 2008 and in 2009, that resulted in your conviction related to drugs which was for possession of dangerous drugs to which you were sentenced to drug addiction treatment centre.

Mr Bok Tin-yuen, your counsel, has informed me that you have in fact been dependant on ‘Ice’ and ketamine for a long time. When you were arrested for this offence and admitted into Lai Chi Kok after remand, the urine specimen collected from you and tested showed that it was positive for amphetamine.

Mr Bok relies upon this to show this court that you were a drug dependant at the time of commission of this offence. As a result of your drug dependency and your inability to finance your dependency, you then turned to trafficking. It is for this reason, Mr Bok had said that you trafficked in these drugs to support and sustain your addiction. He has informed me that approximately 10 to 15 per cent of the quantity of drugs seized from you were for your own consumption. He has asked me to use my discretion to take a lower starting point as a result of some of these drugs being for your own consumption. I however told him whilst he was mitigating that unless a significant proportion is for your own consumption, the court does not take any discount from the starting point. In my view, 10 to 15 per cent is not a significant proportion and therefore I shall not be taking any discount from the starting point.

The tariffs for trafficking in drugs for ‘Ice’ and ketamine are clearly laid down by the Court of Appeal. For ‘Ice’, the guideline case is Tam Yi Chun and for ketamine, the guideline case is that of Hii Siew Cheng. In this case, defendant, you were trafficking in two types of drugs. That is ‘Ice’ and ketamine.

For the purposes of sentencing you, I shall take a combined approach in sentence and in so doing, I shall also test this with a conversion method for converting ketamine to that of ‘Ice’. Clearly, the more serious drug in this case is that of ‘Ice’. So I will look at the overall quantity of the drugs in this case and sentence you on the totality of that overall quantity.

Defendant, taking the quantity of ‘Ice’ in this case. There was 37.30 grammes of ‘Ice’ or methamphetamine hydrochloride. Had you been convicted after trial, an appropriate sentence starting point would be one of 8 years and 9 months’ imprisonment.

For the quantity of ketamine of 17.65 grammes, had you been convicted after trial, the appropriate starting point would be one of 4 years and 3 months’ imprisonment. The amount of ketamine if it is to be converted to ‘Ice’, the equivalent amount of ‘Ice’ would be approximately 3 grammes of ‘Ice’. Therefore, I would add 3 grammes to 37.30 grammes which makes a total quantity of ‘Ice’ to which you should be sentenced for in this case to 40.3 grammes on that combined approach.

If you had been convicted after trial for 40.3 grammes of ‘Ice’, defendant, the appropriate starting point would be one of 9 years’ imprisonment.

Defendant, you have pleaded guilty at the earliest opportunity at the committal stage of these proceedings and therefore I shall afford you a one-third discount. Although you do have one trafficking conviction in 2013, it would appear that you have been out of trouble for a couple of years and in those circumstances, I do not propose to enhance your sentence and in those circumstances, you shall be sentenced to 6 years’ imprisonment.