HKSAR v. Cheung Kit Yung

HCCC 282/2019

[2019] HKCFI 2993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 282 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 19 August 2019, the defendant pleaded guilty at Eastern Magistrates’ Court to a charge of trafficking in a crystalline solid which contained 991 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’ and a solid containing 429 grammes of cocaine, worth in total $1,395,784.

In short, the defendant had undertaken to receive through the post a parcel that he knew would contain dangerous drugs and he did this for a reward of $5,000.

On 19 October 2018, he took possession of the parcel which had originated in Nigeria. This was a controlled delivery conducted by a customs officer posing as the postman. The defendant declined to participate in any further controlled delivery which would have perhaps led to the arrest of someone further up the chain. Apparently, he was being loyal to some friend.

There is really no mitigation in a case of this seriousness which would ordinarily carry much weight other than the defendant’s plea of guilty. The value and the weight of these drugs speak for themselves. It appears to me, and it seems that counsel agree, that in the ordinary case, leaving aside any question of enhancement for importation, a starting point would normally be appropriate of 23 years’ imprisonment after trial in a case of this kind.

The combined weight of the drugs was 1,420 grammes and under the sentencing guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, which now apply to ‘Ice’ as well as cocaine and heroin, a 23-year sentence would be appropriate for 1,200 grammes or slightly above. For such an amount, it would be appropriate to add two years for the international element, starting therefore at 25 years. In fact, under the guidelines for ‘Ice’ in the case of Tam Yi Chun [2004] 3 HKLRD 691, the Court of Appeal stated that for amounts over 600 grammes, the same tariffs would apply as for heroin set out in Abdallah.

So that for the ‘Ice’ itself, without even taking into account the cocaine, a starting point of 22 years for 991 grammes would have been appropriate after trial. As regards the cocaine on its own, under the Lau Tak Ming guidelines, a starting point without any enhancement would have been 15 years 8 months. But all of those starting points would have been enhanced by reason of the international element in this case.

Mr Cheung, would you stand, please. You are already in the premier division of criminal activity. What you did was utterly outrageous and it was pure greed. You did not need $5,000, but you wanted it for a new phone. Having said all of that, the fact is that you were 16 at the time of the offence and you are now 17 and people of your age very often do stupid things, even if they are completely outrageous.

For the ‘Ice’ alone, as I have indicated a starting point of 22 years enhanced by at least a year, probably two, would have given you at least 23 years after trial. When people plead guilty, they usually get a third off and you deserve every bit of the third off and that would bring it down to 15 years and 4 months, just for the ‘Ice’.

So far as the cocaine is concerned, the sentence after a trial would have been 15 years 8 months, enhanced by at least a year, but let us say 16½ years would have been the sentence after a trial. But the two should be put together because they are in one charge, quite correctly, and under Abdallah they can be sentenced together as being of a similar nature. So collectively you would have received a sentence after trial in a normal case of 23 years plus something for the importation of these drugs. And I can tell you if you had been an adult when you did this, the sentence you would have received would have been 16 years and 8 months’ imprisonment.

Now, you are not an adult, you are still a juvenile and I do not propose to impose that. Probably, I am open to criticism for reducing that sentence from what should be a sentence for anybody who imports the quantity of drugs which you did. It is no good saying, “I am just a receiver and all I did was take the parcel in.” Without you, those drugs could not have been received for someone else further up the chain to take them. You did a dreadful thing and make no mistake about it, families are totally ruined when people in the family take these kinds of drugs.

Now, you can be extremely grateful to your counsel in this case for an excellent speech, who has brought some very positive things in your character to my attention and I agree with him that the sentence can be reduced. The sentence I am going to impose is 14 years’ imprisonment.