HKSAR v. Chung Yiu Lam

HCCC 36/2018

[2018] HKCFI 2360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 36 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Mr Chung Yiu-lam, faces one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The particulars of the offence are that the defendant, on the 18th day of September 2014, in Hong Kong, together with Yeung Hoi‑ting, unlawfully trafficked in a dangerous drug, namely 4.96 kilogrammes of a crystalline solid containing 4.86 kilogrammes of methamphetamine hydrochloride. He pleads not guilty to the offence and is convicted unanimously by the jury after trial.

Evidence in the trial

On 18 September 2014, at about 8.40 am, police officers who were conducting anti-dangerous drug operation in Mong Kok, found the defendant suspicious and followed him on taxi to Sheung Shui Railway Station where the defendant was joined by a female, Madam Yeung Hoi-ting. They walked to the urban taxi-stand outside the railway station and were chatting on the way.

The defendant boarded a taxi, sitting on the passenger seat behind the driver’s seat. He told the driver to go to Mong Kok. Madam Yeung put a bag with the pattern of a Paddington Bear into the foot-well of the taxi between the passenger and driver’s seats. The defendant and Madam Yeung continued chatting and when Madam Yeung was about to move back from the taxi and the defendant about to close the taxi door the police rushed in to stop them.

Inside the Paddington Bear bag the police found a white plastic bag containing a black plastic bag. Inside the black plastic bag there were four packets of crystalline solid of a total weight of 4.96 kilogrammes containing 4.86 kilogrammes of methamphetamine hydrochloride, commonly called ‘Ice’. The defendant and Madam Yeung were arrested for the offence of trafficking in a dangerous drug. Madam Yeung pleaded guilty to the offence and was sentenced to 18 years and 10 months’ imprisonment.

The defendant gives evidence during the trial that he and Madam Yeung were lovers and had had a sexual relationship for about eight months at the time of the offence. After finishing work at the illegal mah-jong parlour the defendant operated with two partners in Mong Kok in the morning of 18 September 2014, the defendant went to Sheung Shui Railway Station to pick up Madam Yeung who was coming back to Hong Kong from Shenzhen.

After they met up at the Sheung Shui Railway Station, Madam Yeung told the defendant that she suspected herself to be pregnant. They had a row about whether to keep the baby and were both unhappy. The defendant and Madam Yeung went to take a taxi at the urban taxi-stand outside Sheung Shui Railway Station to go to Madam Yeung’s home at Tsiu Keng Village first for Yeung to put down her things and then to Mong Kok for Madam Yeung to see a doctor to confirm whether she was pregnant.

The defendant boarded the taxi and told the driver to go to Tsiu Keng Village and then to Mong Kok. Madam Yeung then put the Paddington Bear bag into the taxi. When Madam Yeung was about to board the taxi, police officers rushed in and the dangerous drug in question was found inside the Paddington Bear bag. The defendant and Madam Yeung were arrested. The defendant did not know that there was dangerous drug inside the Paddington Bear bag.

Criminal record

The defendant has 9 previous convictions of which 5 counts are trafficking in a dangerous drug and 4 counts possession of a dangerous drug. He was last convicted on 16 March 2009 of one count of possession of a dangerous drug and two counts of trafficking in a dangerous drug and was sentenced to a total of 8 years and 6 months imprisonment.

Mitigation

The defendant is aged 54 and according to the evidence he gives in the trial he is divorced with a daughter aged 32. He received no formal education and he was a part-time decoration worker before the arrest in the present case. Counsel for the defendant points out that the defendant has gone through the ordeal of two trials because the present trial is a second one. The defence counsel informs the court that the judge in the first trial adopted a starting point of 26 years 3 months imprisonment which was enhanced because of the dangerous drug being taken to Hong Kong over the border.

The defence counsel says that the defendant will have to serve a substantial sentence and will be aged more than 70 when he is released. He asks the court to take all this into consideration in sentencing the defendant.

Sentence

According to the authorities, the sentencing guidelines of trafficking in ‘Ice’ are the same as those of trafficking in heroin. In the case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, the starting point for trafficking in 4 kilogrammes to 15 kilogrammes of ‘Ice’ is 26 to 30 years imprisonment. The quantity of ‘Ice’ in the present case is 4.86 kilogrammes and the starting point is, therefore, approximately 26 years and 3 months imprisonment.

On the strength of the evidence adduced in this trial the jury must have come to convict the defendant on the basis that he was acting in joint enterprise with Madam Yeung. He no doubt must know that Madam Yeung had taken the dangerous drug across the border from China to Hong Kong. The court has to take this into consideration in sentencing.

The defendant has a lengthy criminal record connected with dangerous drug and he has five previous convictions of trafficking in a dangerous drug. He committed the present case about 15 months after he was released from prison. These are aggravating factors which the court has to take into consideration. Although this is a retrial which was ordered by the Court of Appeal through no fault of the defendant, the court is of the view that this cannot constitute a valid mitigating factor.

The court adopts a starting point of 26 years 3 months imprisonment and enhances it to 28 years 3 months imprisonment for the international element involved in this case. The starting point is further enhanced to 28 years 9 months imprisonment to reflect the poor criminal record of the defendant and the fact that he committed the present offence not long after serving a sentence in prison.

The court, therefore, adopts a final starting point of 28 years 9 months imprisonment. The court is of the view that the defendant has no valid mitigation and sentences the defendant to 28 years 9 months imprisonment.