HKSAR v. Ching Kim Ho

HCCC 281/2019

[2020] HKCFI 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 281 OF 2019

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

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COURT:

Defendant, on 19 August 2019, you pleaded guilty to a charge of trafficking in dangerous drugs before a magistrate sitting at the Eastern Magistracy. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.

You admitted that on 19 July 2018, outside No 443 Shanghai Street, Mongkok, Kowloon, you unlawfully trafficked in 57.60 grammes of a solid containing 47.37 grammes of cocaine and 2.33 grammes of cannabis in herbal form.

On 19 July 2018, at 3.30 am, police officers in uniform and plainclothes were patrolling along Shanghai Street together. They observed you increase your walking pace when you spotted the officers. At that time, you were carrying in your hand a greyish black bag. The officers gave chase and intercepted you outside 443 Shanghai Street. At that time, you were getting into a private vehicle parked on the street.

Upon search, the bag you were carrying was found two plastic bags containing a total of 55.7 grammes of a solid containing 46 grammes of cocaine, two plastic bags containing a total of 1.9 grammes of a solid containing 1.37 grammes of cocaine, one plastic bag containing 0.96 grammes of cannabis in herbal form and another plastic bag containing 1.37 grammes of cannabis in herbal form. At the time you also had with you two mobile phones and cash of $9,420. You were arrested and cautioned for trafficking and you remained silent. You were not the registered owner of the vehicle that you were about to board.

In July 2018, the cocaine had a retail value of between $59,731 and $68,141. The herbal cannabis had a retail value of $473.

Defendant, you are 32 years of age. You have six previous convictions which occurred on four separate appearances in court, two of them are related to dangerous drugs which are possession of dangerous drugs to which in 2014, you were sentenced to probation for 12 months in January, and then in October you were sentenced on appeal to 18 months’ imprisonment. On that occasion you were discharged from prison on 19 August 2015. You studied up to Form 4 and since 2016 until the day of your arrest you worked as a transportation worker, earning a salary of approximately $25,000 a month. I am informed that you married in early 2018, however, divorced shortly after a year in August 2019.

Mr Albert Luk has mitigated fully on your behalf in his written submissions and of course in the letters he has submitted to me by your employer, mother and yourself and the rural committee chairman as well as a letter from the Hong Kong Christian Kun Sun Association social worker.

Mr Luk informs this court that shortly after your release from prison in 2015, you maintained your addiction to drugs and continued your dependency. Your dependency, I am informed, weighed heavily in terms of you taking relying upon fifty to sixty thousand dollars a month for your drug dependency. That was almost twice or more of your monthly salary of $25,000. As you had insufficient means to support your addiction, you then lapsed into drug trafficking.

As can be seen from your letter to this court, your drug dependency has already ruined your marriage previously, as a result of which your wife divorced you, and now as a result of this trafficking charge, you have clearly disappointed your mother and your family. You have indicated to me that you will, however, turn anew and take some useful courses and learn some new skills to enrich yourself.

The strongest mitigating factor in this case, defendant, is of course your early plea of guilty. For that, you will be awarded a one-third discount.

I am informed by Mr Luk and it is supported that even at the time of your arrest upon admittance to Lai Chi Kok Reception Centre, a urine test was conducted and it tested positive for cocaine. Mr Luk says that the two packets of cannabis were for your own consumption and the two smaller packets of cocaine were also for your own consumption. In view of your drug dependency, I am prepared to accept the submission made by Mr Luk that these four packets were for your own consumption.

The two smaller packets of cocaine totalled 1.90 grammes of a solid which contained 1.37 grammes of cocaine. In the case of Choi Chun Wo, CACC 273/2017, theoretically, if the prosecution accepts that some of the drugs were for your own self-consumption, then the charges should be separated to one of possession and one of trafficking. Mr Bobby Cheung, senior prosecutor in this case, takes a neutral stance as to whether to accept that these drugs were for your own self‑consumption.

I am, as I mentioned, prepared to accept that these drugs were for your own consumption. In the circumstances, I shall deduct 1.37 grammes of cocaine from the total amount of cocaine which is 47.37 grammes. Therefore, the amount of drugs, cocaine, that you were trafficking in is an amount of 46 grammes. The guideline case for trafficking in cocaine or heroin is that of Lau Tak Ming. The starting point for an amount of between 10 to 50 grammes of cocaine is between 5 and 8 years’ imprisonment.

Defendant, taking that amount into account, had you been convicted after trial, I would have taken a starting point of 7 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced by one-third and you shall be sentenced to 5 years’ imprisonment.

The remaining amounts or proportions of cocaine and herbal cannabis are insignificant and it has no effect on the overall sentence of which I have just passed.