HKSAR v. Chow Ho Yin

HCCC 216/2017

[2018] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 216 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Chow, you were found guilty after trial by jury of trafficking in 41.31 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called, on 21 August 2016, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You were found with those drugs hidden in your underpants after you were stopped and searched by PC4543, when you were spotted acting suspiciously at 3 o’clock in the morning on the Cheung Wah Estate.

Two officers were present at that time, and three more were in the vicinity, but nevertheless, you suggested that the drugs found upon you had been planted and you asked for a voir dire to test the veracity of the police witnesses. You sought to have ruled inadmissible a notebook entry and a video-recorded interview taken from you on the same day, on the basis that both had been obtained involuntarily, and you claimed that the police had induced you into admitting possession of the drugs in order to save your girlfriend from losing police bail as a result of her offending on the previous evening and being found with you once again, on 21 August 2016.

The voir dire required six witnesses to be called by the prosecution and you gave evidence yourself; I did not believe you. As is your absolute right, you sought to have a trial. You rehearsed your arguments again in front of the jury and they did not believe you either. Whilst attacking the credibility of the police witnesses, your defence was a simple one; the drugs were planted. They were planted by a group of officers who conspired to pervert the course of justice. The jury did not accept that defence and you were found guilty of the one charge which you face.

The total value of the solid containing the drugs you were trafficking in, was $14,708 in August 2016.

You are now 27 years of age, and you already have a criminal record dating back to 2004 when you were just a teenager. You have four drug related offences; the first in 2009 when you received probation for 18 months. You were 19 at the time and this was your second chance at probation which you breached, and so you received DATC. You received DATC again in 2011, and in 2014 for drug related offences. That clearly did not work because in 2015 you were, once again, convicted of possession of dangerous drugs and this time you received 10 months’ imprisonment. You were discharged from that sentence on 22 April 2016 and you committed this offence in the August.

Probation, DATC and prison appear to have no effect upon your offending behaviour. Why was that? I have taken into account all that has been said on your behalf, very ably by Mr Lo. You had an unfortunate childhood, your parents abrogated their responsibility for raising you, and your care was left to your grandmother who neglected you. It is not a surprise that you were in trouble as a child, and that you continued to offend, for you had no proper support when you were not under the care of the authorities.

It is no surprise that you found solace with friends who were also on the wrong side of the law, as they appeared to be your only support system. I suspect it was those so-called friends who suggested to you that you should fight this matter despite having no other defence than that the police planted drugs upon you. But you now accept the verdict of the jury and I hope you see that the stance which you took cost you three years of your life, because I can give you very little discount for any plea.

The relevant sentencing guideline for the offence of trafficking in ice is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and for trafficking in between 10 to 70 grammes of ‘Ice’, the sentencing range is between 7 and 11 years. For trafficking in 41.31 grammes of ‘Ice’, the starting point, after trial, is therefore 9 years. Trafficking of dangerous drugs is a very serious offence and deterrence is therefore an overwhelming consideration, not just for society at large, but also, of course, to deter you from reoffending.

Because of what I have been told, I am not going to mark your previous offending behaviour by adding to that starting point, even though I could properly have done so given your attitude to the penalties imposed upon you previously, and the fact that you were found reoffending a very short time after having being released from your custodial sentence.

I know you are, in fact, still young, and you can turn your life around by making the most of the next few years in prison by obtaining qualifications and reflecting upon why you have reached this stage. You are no longer a child; your early years may have been unfortunate, but there does come a time in every man’s life when you must take responsibility, and you must not seek to blame others, and this, Mr Chow, is your moment. You will go to prison for 8 years and 6 months.