HKSAR v. Chan Chi Fung

HCCC 161/2018

[2018] HKCFI 2364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 161 OF 2018

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

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COURT:

On 14 May 2013 at Eastern Magistracy, Chan Chi-fung, the accused pleaded guilty before a magistrate in committal proceedings. He was committed for sentence to the High Court, a set of facts was agreed between the parties.

On 21 October 2017 in the afternoon, the accused was intercepted at the customs hall at Lo Wu Control Point. A search was conducted by officers of the Customs and Excise Department who found eight plastic packets of suspected dangerous drugs wrapped around the thighs of the accused.

On examination, the dangerous drugs were analysed to be 216.7 grammes of a crystalline solid containing 213.6 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The accused was thereupon arrested and cautioned. Following the caution, the accused admitted the items seized from him contained the drug ‘Ice’ which he had brought to Hong Kong from China for a person who had promised him a reward of $7,000.

The accused was later interviewed under caution and that interview was video recorded. During the course of the interview the accused admitted that he did not have a stable job, he met an old colleague who asked him to bring ‘Ice’ from Shenzhen to Hong Kong, promised him a reward of $7,000 for doing so. The accused said that he accepted this offer because he needed money. He then described the process of acquiring the drugs in the mainland.

The estimated value of that quantity of drugs for October 2017 was $92,000.

Movement records from the Immigration Department show that the accused departed Hong Kong on the date of the offense at 12.14 am and returned at 3.24 pm.

The accused, 30 years of age, was born in the mainland but is a holder of a Hong Kong Identity Card.

He is, so I am told, unmarried and completed lower secondary education. He worked as a cook between 2007 and 2015 with a monthly salary of $17,000 plus possibly a bit more. In recent times, he has been unemployed and worked at odd jobs deriving about $6,000 per month from that.

The accused told Customs and Excise officers that he was in good health and not addicted to drugs.

The accused has a criminal record going back to 2007. That said, it is not a bad criminal record. The only drugs related offense was a conviction in 2009 for possession of dangerous drugs to which he was sentenced to 14 days’ imprisonment.

Sentencing Principles ‑ Trafficking in ‘Ice’

The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private and more pertinently in public can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.

To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including ‘Ice’, which is of course the subject of the charge in this case.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested for the quantities involved in the present case in relation to 'Ice' falls within the range 70 grammes to 300 grammes which normally attracts a sentence in the range of 11 to 15 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

International element

The accused travelled from Hong Kong to the mainland. He was only in the mainland for less than a day and he was detected by customs officers carrying into Hong Kong the drugs the subject of the charge.

It has been recognized by the courts that carrying drugs across international or in this case, intra-national borders is an aggravating circumstance and for that the authority is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 4237, 2 HKC 197, para 42-43. That approach has been followed in the multitude of cases including HKSAR v Chung Ping Kun CACC 85/2014, HKSAR v Loua Cece CACC 328/2014 and HKSAR v Conde Nassou CACC 427/2014. The authorities suggest an enhancement ranging from a few months to over 2 years.

Application of sentencing principles

The starting point for this quantity of ‘Ice’ is about 13 years and 6 months. In my judgment, it is appropriate to enhance the sentence because of the aggravating factor of the accused carrying the drugs from the mainland. The enhancement I consider appropriate is 9 months. That means that the starting point for sentence becomes 14 years and 3 months.

Discount for plea of guilty

For many years, it has been the policy of the courts in Hong Kong to reward an accused who takes responsibility for his conduct and pleads guilty at the earliest possible moment. Our courts have recognized that the discount to be accorded to an accused in the circumstances is one-third. That is entirely appropriate in the current circumstances.

Self-consumption

The accused asserts that he would receive some of the drugs for his own consumption. There are two issues to be considered with respect to that. The first is the factual issue and the second is what to do with those facts.

First of all, it has long been recognized that in a trafficking case, possession of some of the drugs for self-consumption might be a mitigating factor. However, the issue here is whether there is consumption of either some of the drugs or a substantial portion. The position is that it is only if there is a substantial portion that the sentencing authorities suggest some reduction on this account. The issue is not just consumption of ‘Ice’, the issue is whether that some of the drugs in his possession as he crossed the border were for self-consumption.

There is no mention of that fact in any of the conversations that he had with the Customs authorities on the day of his arrest or shortly thereafter. He was arrested and cautioned at the scene, he gave a video-recorded interview in which he described the process of taking the drugs from the mainland to Hong Kong and his reasons for it. In that, there was no mention whatever of, first of all, the issue of addiction and secondly, that a portion of this collection of drugs was for his own consumption. There was a urine test that revealed that, three days after he was taken into custody, he still had amphetamines in his urine and that is a fact which by itself does not take the matter much further but when taken without the factors might suggest addiction which then might suggest that a possession of drugs might include a component for self-consumption.

He asserted before me that he was consuming ‘Ice’ at the rate of perhaps between 2 and 4 grammes a day for start. On the information that has been given to appellant courts in recent years, if this was the kind of ‘Ice’ being carried across the border, he would likely to have suffered serious physical consequences for that level of consumption. So the overwhelming inference from that is that what he was taking was something diluted with other chemicals to make it not quite as potent. Again, that is inconsistent with the kind of drugs that he was carrying across the border.

In my judgment, I am not satisfied that this quantity had any component for self-consumption. It may be that the person who hired him for this act of criminality may have generously provided the reduced price or may have given ‘Ice’ to him at a later stage. But as to the carrying of this quantity, I do not accept as a fact that this was for self-consumption.

Disposition

Regrettably, the accused has plainly succumbed to the temptation to take a short term advantage to solve his immediate financial problems. The relationship between risk and reward is heavily weighted against the person in the position of the accused in this case. Our system of penalties focuses on deterrence not only of the individual but generally in the hope that while this accused will suffer severe punishment, the message will be conveyed to those who might be tempted to undertake such a venture and might be deterred from it. Sadly, the cost is high for the people in the position of the accused and for people close to the accused such as families.

Doing the best I can to balance justice with mercy and on the basis of a starting point of 14 years and 3 months, I reduce the sentence by one-third to take into account your plea of guilty at the earliest possible moment.

I order that you be imprisoned for 9 years and 6 months.