HKSAR v. Choy Chi Hung

HCCC 405/2018

[2019] HKCFI 1791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 405 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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The defendant, Choy Chi-hung, pleaded guilty before me this morning to one charge of trafficking in a dangerous drug.

The offence took place on 4 April 2018 and it concerned 27.8 grammes of a crystalline solid containing 23.4 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The facts submitted by the defendant revealed that on 4 April 2018 at around 1.42 am, police officers who were conducting an anti-narcotics operation saw the defendant acting furtively outside a hotel situated in No 60 Portland Street, Yau Ma Tei, Kowloon. The police officers followed the defendant into the hotel, intercepted him and escorted him out of the hotel for investigation. As they reached the exit of the hotel at the car park, the defendant suddenly dropped a white object on the ground with his right hand.

The white object was later retrieved by the police officer and it was opened in the defendant’s presence. The white object was a piece of tissue, inside which was a black plastic sheet wrapping some crystalline solids suspected to be dangerous drugs.

A body search was conducted with no other illicit articles found on him. Finally, the defendant was arrested for the offence of trafficking in a dangerous drug. Under caution, he said: “Ah sir, the packet of dangerous drugs ‘Ice’ on the ground is not mine”. The defendant had with him HK$243.6 at the time of the arrest.

The suspected dangerous drugs were later examined by the government chemists who confirmed that the contained ‘Ice’ in exact quantity as referred in the particulars of the charge.

The estimated street value for the dangerous drugs at the material time was HK$19,293.

A urine sample taken from the defendant on 7 April 2018 tested negative for amphetamine, but positive for cocaine. The defendant now admits and accepts that he was trafficking in a dangerous drug seized in the case.

The antecedents statement of the defendant tells me that he is now 48-year-old and he was born in Hong Kong. He has completed Form 3 level of education and he was a taxi driver at the time of arrest, earning $20,000 each month.

His lawyer, Mr Kwan, told me in mitigation that the defendant had two marriages. In the first marriage, they have a son now 28 years old. The first wife eventually divorced the defendant and he was now living with his second wife, now aged 40 and his sons at the time of the offence.

Between 2000 and 2017, the defendant was brought before the court on three occasions in relation to a total of four offences, three of which are drug-related, for which he was all fined as a result. He had no similar record of trafficking. His last conviction is AOABH in October 2017 for which he was sentenced to 2 weeks’ imprisonment, suspended for 12 months. In other words, he was in breach of his suspended sentence by committing the present offence.

Mr Kwan also said that the reason why the defendant committed the present offence is purely for financial reasons. He told me that the defendant had a drug habit, which can be supported by his previous possession of dangerous drugs conviction and also by the result in the urine test. Mr Kwan also drew my attention to the mitigation letter written by the defendant in which he had expressed regrets and asked the court to be lenient so as to give him a chance to turn over a new leaf.

In the letter, defendant also mentioned that his old aged mother has suffered a heart disease for a long time. He is the breadwinner of the family. Further, the defendant also produced the letter from the Department of Health, acknowledging the receipt of the letter from him, indicating his support of registration for organ donation with the department.

In sentencing the defendant, I have borne in mind the facts of the case, the quantity of the drugs and the nature of the drugs involved. I have of course great sympathy for the family members of the defendant but the welfare of the defendant’s mother or son was something he should have borne in mind before he committed the offence. The Court of Appeal has repeatedly stated that family circumstances play no part in mitigation, especially in serious offences such as the present. The court, of course, can never accept economic reasons for committing an offence.

Trafficking in dangerous drugs is of course a very serious offence. The maximum punishment is life imprisonment and a fine of HK$5 million. So those who are involved in the drug trafficking activities, once caught and convicted, would expect no mercy from the court.

The only mitigating factor which is effective in this case is defendant’s plea of guilty. The indication by the defendant that he went to register as an organ donor is noted, but I am afraid it cannot be accepted as a reason for further reduction of sentence.

Now this case concerned 23.4 grammes of ‘Ice’. The Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 set down the tariff for trafficking ‘Ice’. Between 10 to 70 grammes, a starting point after trial of 7 to 11 years’ imprisonment is appropriate. Given the quantity of ‘Ice’ in this case, Mr Kwan suggested a starting point of 8 years’ imprisonment and I agree.

As to the discount, the defendant pleaded guilty not at the first available opportunity but he only indicated his intention to plead guilty after this case has been committed to the CFI for trial and just a few days before the scheduled case management hearing at which point I am given to understand the trial date has yet to be fixed. According to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in the circumstances, he is only entitled to 25% reduction. That would further bring the sentence down to 72 months or 6 years’ imprisonment.

Apart from the guilty plea of the defendant, as I have said, there is no other mitigating factor which can reduce the sentence. In view of the length of the sentence that the defendant needs to serve for this offence and the relatively minor nature of his last offence, in the end, I decide not to activate the two-weeks suspended sentence.

For the reasons given, defendant, please stand up. For this offence I sentence you to 6 years’ imprisonment.