HKSAR v. Li Cheung Yin

HCCC 217/2017

[2018] HKCFI 1464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2017

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

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COURT:

I do not propose to keep you in suspense. You are going to prison for 7 years. When I have left court, Mr Ho will explain to you when you are likely to be released from prison, bearing in mind the rules about remission and the length of time you have been in custody on remand.

The jury saw through your claim that all the drugs were for your personal consumption. By its verdict, the jury was sure that you were trafficking in at least some of them. There is little doubt that you were a user of drugs yourself, in view of the fact that the sample of your urine taken three days after your arrest tested positive for the principal active ingredient of “Ice”.

Although I have no doubt that the jury was sure that you were trafficking in the “Ice”, I cannot be sure that the jury was sure that you were trafficking in the cocaine and the “five chai” as well. The amount of each and their retail price were not inconsistent with your claim that they were for your own use. I am therefore prepared to treat you as someone who dealt in “Ice” in a small way to feed your habit, but that you had the cocaine and the “five chai” for your own use. There is no evidence about how you dealt in “Ice”, but I propose to deal with you on the basis that you were a low level supplier, either selling “Ice” to end users, or passing it on to someone further along the distribution chain. You now say that at least half of the “Ice” found on you at the time of your arrest was for your own consumption, but it is difficult for me to accept that in its entirety in view of the lies you have already told about the “Ice”. I accept you might have used a small amount of this “Ice” yourself, but I cannot say that it would have been anything more than a negligible amount.

You have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in “Ice”. The guidelines are based on the amount of “Ice” involved, although the court’s focus is not on the weight as a whole. It looks at the narcotic content of the “Ice”. The weight of the narcotic content of the “Ice” in your case was just over 20 grammes. The guidelines say that the appropriate range for someone who is convicted of trafficking in “Ice” between 10 and 70 grammes of “Ice” is 7 to 11 years’ imprisonment. That is the range for someone who has been convicted of trafficking in “Ice” after pleading not guilty. It goes without saying that your offence is far too serious for rehabilitation in a Drug Addiction Treatment Centre to be a feasible option, leaving aside the fact that you have had three spells in such a centre without success.

You are the classic small-time dealer in drugs contemplated by the guidelines, and there is no reason for departing from the guidelines in your case, though it would not be fair if I simply took the appropriate sentence for the “Ice” you were trafficking in, and the appropriate sentences for the cocaine and the “five chai” you had in your possession, and then aggregated them. The fairer and more realistic approach is to take the sentence which would have been passed for the most serious offence if you had to be sentenced just for that, in this case trafficking in the “Ice”, and then to take account of the fact that you were in possession of much smaller quantities of the cocaine and “five chai”.

Had I been sentencing you for trafficking in the “Ice” alone, I would have taken 7 years’ imprisonment as my starting point, balancing the fact that the quantity of “Ice” was close to the lower end of the range, the low level nature of your trafficking, and the fact that you may have used a small quantity of this “Ice” yourself, against the fact that you have many previous convictions, including a conviction for trafficking in dangerous drugs. That conviction means that a charge of hypocrisy can be added to your crime, in view of your claim to the jury that your moral principles would not allow you to traffic in drugs. Your previous record does not mean that you should get a longer sentence, but it does mean that you have forfeited any chance of leniency which you otherwise might have had.

I bear in mind that the Court of Appeal has said that trafficking in different kinds of drugs is an aggravating factor, but I am dealing with you on the basis that you were trafficking in one kind of drug only, and at the same time I must be careful not to sentence you twice over for the same thing. The quantities of cocaine and “five chai”, which you had in your possession were relatively small when compared with the quantity of “Ice”, and their street value was negligible in comparison. In the circumstances, I do not propose to enhance the sentence for your possession of the cocaine and the “five chai”, and I therefore propose to take 7 years’ imprisonment as my starting point for all the drugs.

Since you pleaded not guilty to trafficking, you are not entitled to any discount on that sentence. That means that the sentence which I pass for this offence of trafficking in a dangerous drug is 7 years’ imprisonment.