HKSAR v. Chan Yee Leung

HCCC 437/2017

[2018] HKCFI 1834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2017

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

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COURT:

The defendant pleads guilty before me to one count of trafficking in a dangerous drug, namely 36.4 grammes of a crystalline solid containing 34.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

At about midnight on 22 March 2017, the defendant was spotted by police constables at Lai Chi Kok Road, acting suspiciously. He was stopped by the police and upon body search, five transparent resealable plastic bags containing the relevant drugs were found inside the pocket of his jacket. Under caution, the defendant said the ‘Ice’ is for his own consumption.

The estimated street value of the relevant drugs was around HK$10,200.

The defendant is 50 years old, single, educated to Form 5 level. He was a decoration worker, allegedly earning around HK$20,000 per month. Since 1987 and until 2013, he has been convicted of over 20 previous criminal offences, mostly related to drugs. He was convicted of the offence of trafficking in dangerous drugs for three times, respectively in 2004, 2010 and 2013. In 2013, he was sentenced to a term of imprisonment of 6 years and 8 months. He was released from prison on 9 May 2016.

In mitigation, Mr So, counsel for the defendant, submitted that the defendant was a drug addict, and part of the relevant drugs seized was for his own consumption. Relying on the Court of Appeal’s decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, Mr So urged this court to give the defendant a discount on sentence because of this factor.

The defendant has only indicated his plea of guilty a few days before the scheduled trial date. Mr So submitted that as the original counsel representing the defendant has passed away suddenly, the defendant has been unable to receive sufficient advice on his plea and therefore could not indicate his plea of guilty earlier. Mr So asked this court to take this into account when considering the proper discount to be given for the defendant’s guilty plea.

Mr So submitted some correspondence between the defendant and Father Wotherspoon to the court. Mr So said the contents of which shows that the defendant has been very remorseful after his arrest. In a letter from Father Wotherspoon to this court, the Father said that the defendant has contributed to his campaign to fight against drug trafficking in Hong Kong and asked this court to treat the defendant as if he is having a good character, in considering his sentence.

Trafficking in dangerous drugs is a very serious offence and the Court of Appeal has laid down sentencing tariffs for trafficking in different kinds of drugs. For trafficking in ‘Ice’, the Court of Appeal has laid down the tariff in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in a quantity between 10 and 70 grammes, the proper starting point should be seven to 11 years’ imprisonment.

In the present case, taking into account the quantity involved, the proper starting point should be 8 years and 9 months’ imprisonment.

The urine test result of the defendant at the time of his arrest for the present offence indicates that he has been taking ‘Ice’ at that point of time. Taking into account the defendant’s long history of records relating to dangerous drugs, the quantity of drugs involved in this case and the evidence of the income of the defendant in relation to his employment, I accept that a significant part of the relevant drugs found on the defendant was for the defendant’s own consumption. In consideration of this factor, I would lower the starting point from 8 years 9 months to 7 years’ imprisonment.

The defendant has indicated his plea of guilty only at a very late stage. I do not accept the suggestion that the death of his previous counsel can be an excuse to justify his late plea. His previous counsel, the late Mr Kevin Egan, appeared before this court on the defendant’s behalf at the PTR and at that time, there was a clear intimation of a plea of not guilty made on the defendant’s behalf. Mr Egan has even made it very clear to the court that the only issue in this case was whether the possession of the relevant drugs was for the defendant’s own consumption, or for the purpose of trafficking.

I do not accept that the defendant had not been given sufficient advice in relation to his plea. In my view, a discount of slightly more than 20 percent should be given to the defendant for his guilty plea.

I can see no other valid mitigating factors. I would decline Father Wotherspoon’s urge to treat the defendant as having a good character. This is the fourth time the defendant has committed the offence of trafficking in dangerous drugs. The present offence was committed shortly after the defendant was released from prison for the same offence. It would be already very lenient to the defendant in not enhancing the defendant’s sentence because of that.

To conclude, the starting point of 8 years and 9 months be reduced to 7 years for the fact that part of the drugs was the defendant’s own consumption. The term of sentence be further reduced by a discount of slightly more than 20 percent to 5 years and 6 months’ imprisonment.