HKSAR v. Choy Po Hin

HCCC 278/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 278 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 14 August of this year the defendant pleaded guilty at the Eastern Magistrates’ Court to one charge of trafficking in a dangerous drug.

The particulars of the offence allege that on 9 January, at the Customs Arrival Hall, Lok Ma Chau Spur Line Control Point, New Territories, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 16.6 grammes of a crystalline solid containing 16.3 grammes of methamphetamine hydrochloride. He has today confirmed that plea before me.

The Summary of Facts was read in open court on that occasion and the record reveals that it was accepted by the defendant. That Summary of Facts was read to him this morning and he confirmed that it is true and correct. His counsel has likewise today confirmed his plea of guilty and the Summary of Facts.

An antecedents statement has been prepared on behalf of the prosecution. The defendant is very young. He is 19 years of age. He has only one relevant criminal conviction in 2016. Nevertheless, it is obvious that he has been involved in dangerous drugs because subsequent to his arrest for these matters, he has been convicted and sentenced to DATC.

The antecedents statement reveals that he is single and lives with his mother, educated up to Form 3 level and, with some explanations provided by his counsel, he was working at the time of his conviction as a sales or logistics worker. I have also been advised that since his arrest and incarceration he has become a father and a child was born on 25 September 2017.

The Summary of Facts reveal the following: at about 5.30 pm, on 9 January 2017, at the Arrival Hall at Lok Ma Chau Spur Line Control Point, the accused was selected by a customs officer for customs clearance. He was searched and a packet of what was suspected to be the dangerous drug ‘Ice’ was found in the hood of the jacket he was wearing. He admitted at the time to the officers that the substance was ‘Ice’ and that he had picked it up across the border and brought it back with him into Hong Kong.

The suspicions of the customs officer were confirmed by a test conducted at the border site and later were confirmed by the analysis of the government chemist, which determined that the substance was 16.6 grammes of a crystalline solid containing 16.3 grammes of methamphetamine hydrochloride. At the time, he told the customs officers that he had gone across the border to collect the ‘Ice’, the packet of drugs, for a friend. The immigration records reveal the defendant departed for the mainland at 4.37 pm, on 9 January 2017, approximately one hour before he returned.

The value of the methamphetamine hydrochloride was confirmed to be in excess of $4,700.

On behalf of the defendant, his counsel has readily acknowledged that the principal mitigating factor in his favour is his early plea of guilty. He is, by reason of that, entitled to a full one-third discount from the appropriate starting point for sentence. The aggravating factor in addition in this matter, however, is the fact that the defendant has brought these drugs into Hong Kong. The starting point for sentence must, by reason of that, be enhanced to reflect the gravity of the importation.

The Court of Appeal has provided guidance in respect of this and indicated that enhancement for up to 250 grammes (of dangerous drugs) would, in the normal course of events, be in the amount of 6 months on top of the appropriate starting point. For the avoidance of doubt, I am referring to HKSAR v Chung Ping Kun [2014] 6 HKC 50 at 54.

What then is the appropriate starting point for sentencing in this matter? In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the guidelines for trafficking in methamphetamine hydrochloride were further revised. In respect of this quantity of methamphetamine hydrochloride the appropriate starting point after trial would be 7 years and 5 months’ imprisonment. The minimum appropriate enhancement for importation would be 6 months. That would then be a starting point for sentence after trial of 7 years and 11 months’ imprisonment. The defendant is entitled to a full one-third discount from that starting point. There is nothing in the circumstances of the commission of this offence or the personal circumstances of the defendant which would allow me to give him a discount from that starting point in excess of that full one-third.

(Discussion re discount for starting point for sentence)

That being the case, the appropriate sentence is one of 5 years and 3 months’ imprisonment and that is the sentence I will impose.