HKSAR v. Siu Kwun Keung

HCCC 263/2018

[2018] HKCFI 2784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 263 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 was originally charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The two charges were later amended to become one single charge of trafficking in a dangerous drug.

The particulars were that the defendant on 25 December 2017 at 11th Floor, SAV Hotel at Wuhu Street, unlawfully trafficked 164.7 grammes of a crystalline solid containing 163.1 grammes of methamphetamine hydrochloride commonly known as ‘Ice’.

The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts admitted by the defendant disclosed that at around 8.30 pm on 25 December 2017, which of course was Christmas day, police officers conducted an anti-dangerous drugs operation at the SAV Hotel. The officers stayed inside room 1121. Through the security hole on the door, the officers saw the defendant walk inside room 1122. About ten minutes later the defendant walked out of room 1122. The defendant was intercepted and escorted back into room 1122. Inside the defendant’s left shoe, a resealable plastic bag containing 27 grammes of a crystalline solid containing 26.7 grammes of ‘Ice’ was found. Inside the defendant’s right shoe, another plastic bag containing 27.7 grammes of a crystalline solid containing 27.4 grammes of ‘Ice’ was located. Upon search of the hotel room, the police officers found a safe with electronic lock. The safe was opened in the presence of the defendant. Inside the safe, the police found a paper bag containing four resealable bags containing a total of 110 grammes of crystalline solid containing 109 grammes of ‘Ice’, an electronic scale and 303 unused resealable bags.

The defendant was arrested and under caution, he admitted he delivered the stuff for others, they were not his. Upon search on the defendant, the police found, among other things, cash of $490 and two mobile phones.

The defendant attended a video-recorded interview subsequently. During the video-recorded interview, he said he worked for someone else and he was given a mobile phone and told to rent a room at the SAV Hotel. He received instructions via the mobile phone given to him and he was going to deliver the dangerous drugs by placing them inside his shoes for a reward of $1,000. He checked into the hotel on 24 December and expected to check out on 27 December. The estimated value of the ‘Ice’ in question was $74,444. The defendant admitted that at all material times he possessed the seized dangerous drug for the purpose of unlawful trafficking.

The defendant is a 33-year-old Hong Kong born man. He was 32 at the time when he committed the offence. He is single and was living with his mother prior to his arrest. I was informed by Mr Adonis Cheung, his counsel, that the defendant worked as a kitchen worker before but he was unemployed at the time of the offence, and that was the reason why he had committed the present offence.

The defendant is not a first offender. He has appeared in court eight times and has 13 convictions. Apart from the first appearance in court in 2001 in which he was convicted of five counts of criminal damage, all the other offences were drug related with all but one being possession of dangerous drugs. The last one was possession of equipment fit for consuming dangerous drugs. This is the first time the defendant is convicted of trafficking in a dangerous drug.

Mr Cheung in mitigation submitted that the defendant’s previous convictions for possession of dangerous drugs were not too serious as reflected by the relatively shorter sentence imposed. He has no previous conviction of trafficking in a dangerous drug and had pleaded guilty at the earliest opportunity.

At first, Mr Cheung submitted that there was no aggravating factors in this case but upon this court pointing out that the defendant rented a hotel room over the Christmas period and the fact that the dangerous drug was stored in the hotel safe. The circumstances of the offence is more serious than a one-off delivery. Mr Cheung agreed but stressed that the defendant was not the mastermind.

Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drugs is involved. A person convicted on the indictment of this offence is liable to a fine of HK$5 million and to imprisonment for life.

In the case of HKSAR v Tam Yi Chun, the Court of Appeal set down guidelines for the trafficking of ‘Ice’. The ‘Ice’ involved in this case was 163.1 grammes which falls under the bracket of between 70 and 300 grammes with a starting point between 11 to 15 years.

The defendant was clearly used by others to supply ‘Ice’ to others during the Christmas holidays when more people might be tempted to take drugs with the holiday mood. For a person with a clear record, trafficking such an amount of ‘Ice’, that is 163.1 grammes, a proper starting point would have been 12½ years. There are, however, aggravating circumstances in this case. The defendant checked himself into a hotel room over the Christmas holiday period with ‘Ice’ stored in the safe and was ready to supply the ‘Ice’ to others. The defendant is not someone with a clear record, he had quite a number of dangerous drugs related convictions though not for trafficking in a dangerous drug.

Having considered the aggravating circumstances of the case, I am of the view that a proper starting point is one of 13 years. The defendant pleaded guilty at the earliest opportunity and is entitled to the full one-third discount. I do not see any other grounds to further reduce this sentence.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 8 years and 8 months’ imprisonment.