HKSAR v. Yu Cheuk Wah

HCCC 74/2019

[2019] HKCFI 1950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 74 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the facts

On 10 March 2018, the defendant was stopped for baggage check when he walked through the green channel of the Customs Hall of Lok Ma Chau upon arrival from the Mainland. At that time, the officer spotted something concealed on the defendant’s waist and back. The defendant was asked what it was to which he replied that there was nothing and he then intended to walk away. Later, when asked to stop, the defendant ran towards the exit but he was eventually subdued after putting up a struggle.

As a result of a search conducted on the defendant, he was found to have carried three plastic bags with a total of 1,067.1 grammes of a crystalline solid containing 1,007.4 grammes of methamphetamine hydrochloride on the waistband of his underpants. Under caution, the defendant admitted that the bags contained ‘Ice’ and that he was asked by a man to take the drugs across the border to someone called Coco in Ting Kau. In return, he would be given a reward of HK$10,000. Later, the defendant identified someone in the CCTV footages whom he claimed to be Coco.

The estimated retail value of the drugs was about HK$575,000.

Defendant’s background and mitigation

The defendant was born in Hong Kong and is now aged 55. He was educated up to primary 6 level. He claimed to be a transportation worker at the time of arrest, earning about HK$15,000 per month and he said that he was then living with his wife.

Between 1981 and 2018, the defendant has got a total of 33 criminal convictions, including 14 theft-related offences, 11 possession of a dangerous drug and three trafficking in a dangerous drug. For the three trafficking offences, he was sentenced in November 1994 and November 2005 to the respective terms of 10 years, 2 years and 4 months, and finally, 9 years’ imprisonment. Further, he was sentenced to 2 months’ imprisonment for a possession of dangerous drug offence in April 2018, the offence of which was committed in November 2017. Parties agreed that the defendant committed the present offence whilst on bail in relation to that possession of a dangerous drug offence.

In mitigation, Mr Tse, for the defendant, submitted that the most powerful mitigation is the defendant’s early plea and that the defendant is now truly remorseful. Mr Tse also submitted that the defendant foolishly committed the present offence as he was chased for repayment of debts owed as a result of his gambling. Given that the defendant will be in his advanced age upon his release from prison following the present imprisonment, Mr Tse urged on behalf of the defendant for as lenient a sentence as possible.

Tariffs

The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 600 and 1,200 grammes of ‘Ice’, the revised term is one of 20 to 23 years’ imprisonment.

Sentencing in this case

Having considered the amount of ‘Ice’ involved and the facts of this case, I am going to adopt an initial starting point of 22 years. Moreover, as the defendant carried the drugs across the border, there was an international element involved. Following HKSAR v Chung Ping Kun [2014] 6 HKC 106, I consider that an enhancement of 2 years is appropriate in this case given the large quantity of the ‘Ice’ in question.

I also notice that the defendant has already been convicted thrice of trafficking in a dangerous drug offence in respect of which he was given quite long terms of imprisonment. The sentences passed are illustrative of the rather serious nature of those trafficking activities. However, he now committed yet another trafficking offence involving 1 kilogramme of ‘Ice’. I therefore take the view that the sentences previously passed on the defendant did not have sufficient deterrent effect and I consider it appropriate to adjust the starting point upward by 3 months in order to deter the defendant and to protect the community.

Another matter is that the defendant committed the present offence whilst on bail in relation to another possession of a dangerous drug case, it is well established that this is an aggravating factor which the court could take into account in enhancing the sentence. Having considered all the relevant circumstances, I take the view that it is appropriate to enhance the sentence in this case further by 3 months.

In total, I am going to enhance the starting point of 22 years by 2½ years, making it one of 24½ years.

The defendant pleaded guilty at the committal stage and he would receive a one-third reduction in sentence. Other than this, there is nothing in this case which would warrant any further reduction.

24½ years reduced by one-third is 16 years and 4 months’ imprisonment. I therefore order that the defendant should serve a term of 16 years and 4 months.