HKSAR v. Choy Chun Hung

DCCC 233/2018

[2019] HKDC 417

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2018

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to two charges of dangerous drug trafficking. 

2.At around 1236h on 8 December 2017, the policemen on a police vehicle noticed a car parked outside a primary school in Kai Tak, Kowloon.  The Defendant was on the driver’s seat.  It later moved to stop behind the police vehicle.  The policemen walked up to the Defendant for a body search.  The Defendant threw away a plastic bag with contents (later found to be 1.36g of a crystalline solid containing 1.36g of methamphetamine or “Ice”).  The bag was seized and the Defendant was arrested.  This is the drug referred to in the 1^st Charge. 

3.Attached to the sun visor above the driver’s seat were 8 plastic bags with contents (later found to be 5.46g of a crystalline solid containing 5.44g of Ice).  The Defendant was arrested again. 

4.In the storage space of the driver’s door was an electronic scale. 

5.The estimated value of the drugs was HK$3,082.64 in total. 

6.The Defendant had on him HK$61,058 and RMB 804, US$100 and 3 mobile phones. 

7.At all material times, he possessed the dangerous drugs found in this case for the purpose of trafficking. 

Mitigation

8.He is 52 years of age.  He had many criminal records, including 6 for possession of dangerous drugs (dates of sentences between 1994 and 2010).

9.At the last hearing, 23 January 2019, he is represented by Mr. Yuen.  Mr. Yuen informs me that the Defendant is the sole breadwinner of the family.  He is the proprietor of a foot massage parlour.  He earns HK$30,000 per month.  He has to provide for his mother, his wife, and a son aged about 6.  He has instructions to inform me that the one bag of Ice that he had thrown away and 4 other plastic bags also seized by the police were for his own consumption.  I expressly have difficulty to accept that, after pleading guilty and admitting that the bulk referred to in each charge was for trafficking, he can then contend in mitigation that only a certain part of the bulk was for trafficking.  After discussing with the Defendant, Mr. Yuen informs me that the Defendant will take the matter no further. 

10.Mr. Yuen also has instructions to inform me that the Defendant’s son is receiving certain psychiatric treatment, a condition which the Defendant claims to arise from his son missing him because of the present court case.  Mr. Yuen asks for time so that a psychiatric report can be obtained to establish that aspect as a mitigating factor.  I therefore adjourn the case to 12 March 2019 pending that psychiatric report.

11.Today, 12 March 2019, the Defendant is represented by Mr. Boyton.  Dr. Candy Lin, a specialist in psychiatry, has prepared a report for the Defendant’s son.  The son is diagnosed to have Adjustment Disorder, manifested as anxiety features, Attention-Deficit Hyperactivity Disorder (ADHD) and some autistic features. Those, however, were pre-existing conditions before the present court case. 

Sentencing considerations

12.Traffickers of up to 10 g of Ice shall face 3 to 7 years' imprisonment as the starting point(A.G. v Ching Kwok-hung [1991] 2 HKLR 125).   

13.It is appropriate where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time (as they did here), where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places, for the sentencer to add the total of the active ingredient of the drugs together to arrive at a notional starting point (HKSAR v Lam Chi-wa CACC 94/2008). 

Sentencing this Defendant

14.The 2 charges are part and parcel of a quantity of Ice possessed by the Defendant for the purpose of trafficking.  One charge would have sufficed for the entire quantity but for the Defendant’s act of throwing away one of the bags of Ice. The number of charges will not affect his culpability and sentence.  I take a starting point of 5 years 6 months (ie 66 months) for each charge.  After the one-third discount for the plea of guilty, the sentence is 3 years 8 months (ie 44 months) each.  I do not consider his son’s psychiatric condition as a factor to reduce the sentence.   

15.The sentences shall be concurrent.