HKSAR v. Au Chin Kong

HCCC 378/2018

[2019] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 378 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 19 June 2018, on the ground floor of Wan Fung Building in Prince Edward Road West in Mongkok, Au Chin-kong, the accused, was intercepted and arrested in possession of a substantial quantity of methamphetamine hydrochloride. He was charged with trafficking in that quantity. A little bit later on the same day, at residential premises at Lei Yue Mun Estate in Yau Tong, the accused was found in possession of 3 grammes of cocaine and 1 gramme of methamphetamine hydrochloride, and charged with possession of dangerous drugs.

The accused was brought before a magistrate on 21 June 2018. On 3 December 2018, the accused pleaded guilty before a magistrate to two charges as follows:

(1) trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance (Cap 134) in that on 19 June 2018, outside the Wan Fung Building in Prince Edward Road West in Mongkok, trafficked in 797 grammes of a crystalline solid containing 536 grammes of methamphetamine hydrochloride; and

(2) possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, at residential premises in Lei Yue Mun Estate in Yau Tong, and in particular, possessed 2.10 grammes of a solid containing 1.84 grammes of cocaine and 0.30 grammes of a crystalline solid containing 0.30 grammes of methamphetamine hydrochloride.

The accused also admitted a set of facts, the essence of which is that on 19 June 2018, at about 9 pm, outside the Wan Fung Building in Prince Edward Road, members of the Customs and Excise Service intercepted the accused carrying a plastic bag which contained 797 grammes of crystalline solid containing 536 grammes of methamphetamine hydrochloride. The accused was arrested and cautioned. Under caution, the accused said that the plastic bag he was holding contained drugs, and he was delivering that bag to Room C, 4th Floor for a reward of $2,000. On search, a set of keys were found in his possession.

A search of the premises at Wan Fung Building to which the accused referred was undertaken and packaging paraphernalia including zip-lock bags and an electronic scale were found in the premises.

Later, at about 11.10 pm on the same day, a search was conducted in the residence of the accused in Lei Yue Mun Estate at Yau Tong. The set of keys found in the possession of the accused enabled officers to open these residential premises. A search was carried out and a bag containing 2.10 grammes of a solid containing 1.84 grammes of cocaine and a plastic bag containing 0.30 grammes of a crystalline solid containing 0.30 grammes of methamphetamine hydrochloride were found in these premises. In addition, three bundles of zip-lock bags were also found.

The accused was arrested and cautioned again. In answer to this caution, the accused said the bags seized from his residence were drugs for self-consumption.

He undertook a video-recorded interview some time later. In the course of that interview, he indicated he did not wish to answer questions.

The total street value of the drugs seized was $425,434.80.

The accused was committed to this court for sentence on the basis of the charges I have outlined and the admitted facts.

Antecedents and Mitigation

The accused is a 30-year-old man who was born in Hong Kong and is the holder of a Hong Kong permanent identity card. His education level was Secondary Five. His parents are retired and he has a sister in employment. Counsel for the accused said that the parents of the accused were divorced and the accused lived with his father who was a retired man in excess of 60 years of age. At the time of his employment, the accused was working as a delivery worker earning $15,000 per month.

The accused has previous convictions. In 2013, he was convicted of trafficking in dangerous drugs, for which he received a sentence of 3 years’ imprisonment in the District Court. In 2015, he was convicted of possession of dangerous drug.

Counsel for the accused, Ms Vivian Wong, submitted that the accused had pleaded guilty at the earliest practicable occasion, and that he should receive credit for that. The previous criminal record of the accused is admitted.

Ms Wong also submitted that in relation to the facts and circumstances in relation to the charge of trafficking, the accused should be viewed not as a mastermind of a criminal syndicate to trafficking in dangerous drugs but merely as a courier. She points out that he made admissions at the scene in relation to the charge of possession of dangerous drug that there was no question other than that the drugs were for self-consumption. It is suggested that the amount involved carried with it no significant risk of the drugs falling into the hands of others. The accused was, at the time of his arrest, a drug addict.

On a positive note, counsel made the point the accused now realized he was facing a substantial term of imprisonment and he has committed himself to undertake courses in commercial and public relations through the Open University of Hong Kong. I understand from counsel that it is possible for the accused to obtain a subsidy for his tuition fees from the Commissioner of Correctional Services. This is a positive sign, and it is heartening to learn that the accused has taken responsibility for his conduct and his life by his plea of guilty and admissions and by the plan of rehabilitation that he has outlined. This court can only encourage the accused in his plans and it is hoped that they come to fruition.

Sentencing Principles: Starting Point, Drug Trafficking

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 the 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. The trafficking and possession of ‘Ice’ can also have serious consequences for the family members close to the accused.

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 have 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 in the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.

To reflect this serious view that the courts and the community take in relation to trafficking in dangerous drugs, 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. The maximum penalty under the law is a fine of $5 million or life imprisonment.

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 of 300 to 600 grammes which normally attracts a sentence in the range of 15 to 20 years’ imprisonment ([2014] 3 HKLRD 691, para 34). The range in question is upon the basis of a conviction after trial. That is the basis upon which the starting point is calculated.

Sentencing Principles in relation to Possession of Dangerous Drugs

The maximum sentence for possession of dangerous drugs is a fine of a million dollars and, subject to section 54A of the Dangerous Drugs Ordinance, to imprisonment for 7 years. Section 54A does not have any compact on this case. There is, and can be, no tariff for the possession of dangerous drugs. In the broad scheme of things, the quantity possessed by the accused is relatively small.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

Application of Sentencing Principles - Trafficking in Dangerous Drugs

I am prepared to accept that the accused can be characterized as a courier. The sentencing band for quantities between 300 grammes and 600 grammes carries with it a sentencing range of between 15 and 20 years’ imprisonment. In my judgment, the appropriate starting point is 18 years and 10 months.

Possession of Dangerous Drugs

In the grand scheme of things, the amount of the two drugs is not all that great. There is no tariff for the charges of possession but, clearly, a term of imprisonment is called for. In my judgment, a term of 6 months’ imprisonment would be appropriate. I do not see any latent risk in the present case given that the drugs were found in the premises of the accused and he is an addict. There should be no enhancement on that account.

Disposition

Could the accused please stand up. Applying the recognized discount to the starting point of 18 years and 10 months results in a sentence of 12 years and 6 months. That will be the sentence on Charge 1. In relation to Charge 2, applying the discount would result in a sentence of 4 months. However, taking totality into account, I order that the sentence on the 2nd charge be served concurrently with the 1st charge.

The order of this court is that the accused be sent to prison for 12 years and 6 months, and that is the order of the court.