HKSAR v. Chu Ka Ming

HCCC 188/2019

[2020] HKCFI 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 188 OF 2019

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

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COURT:

The defendant, Chu Ka-ming, was originally charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded not guilty to both counts. At the end of the prosecution case, I ruled that there was no case to answer to the 2nd count and the defendant was acquitted of that count. The defendant gave evidence in his defence in relation to the 1st count. At the end of the trial the defendant was found guilty of the 1st count.

The facts of the case.

The prosecution case was that on 3 May 2018, a team of police officers were briefed about possible dangerous drug trafficking activities involving a silver Mercedes Benz at Ta Chuen Ping Street that evening. Police officers saw a silver Mercedes Benz double-parked along Ta Chuen Ping Street at around 8.45 pm. The defendant was sitting at the driver’s seat and a woman, later learned to be Tsang Wai-sheung Bonnie, was in the front passenger seat. The police kept these two persons under their observation.

At around 8.55 pm, the defendant alighted from the car, holding a red paper box in his hand. Police officers immediately approached the defendant to intercept him. According to the police officers, after they declared their police identity and showed their warrant cards to the defendant, the defendant suddenly turned to run away, throwing the red paper box onto the ground in the process. The said red box was seized and two plastic bags containing a total of 47.9 grammes of a solid containing 45.1 grammes of cocaine was seized.

The defendant was caught and arrested for trafficking in a dangerous drug. Under caution, the defendant said he had nothing to say. Although the police also found a black bag containing cocaine inside the car, which was the subject of the 2nd count, as the defendant was found not guilty upon my ruling of no case to answer, I will say no more about that.

The defendant attended a video-recorded interview voluntarily. He denied knowledge of the existence of dangerous drug inside the red box, saying that he drove the car at the request of Tsang who was disqualified from driving. He innocently helped Tsang deliver the red box to another person.

In court, the defendant explained that he ran away because he was scared when a number of men rushed towards him. He did not hear them saying they were policemen, nor did he see them showing their warrant cards. He denied having discarded the red box deliberately, saying that he dropped it unintentionally when he turned to run. In convicting the defendant, the jury clearly did not accept the defendant’s version of the event and was satisfied that the prosecution had proved, so that they were sure, that the defendant knew the red box contained dangerous drugs when he took it out of the car for the purpose of delivery and that the defendant acted together with Tsang in trafficking the dangerous drug inside the red box.

Background and Mitigation

The defendant is now 36 years of age. He is single and worked as a decoration worker, earning a daily wage of about $1,000 before the arrest. The defendant is not a man with a clear record. His previous convictions include assault, wounding, possession of offensive weapon in public place and driving under influence of drink or drug. The defendant also had a number of drug-related convictions, three for possession of dangerous drug and one for trafficking in a dangerous drug. He was sentenced to 3½ years for the trafficking-in-a-dangerous-drug offence in 2009 in the District Court.

Mr Davies, mitigating on behalf of the defendant, frankly admitted that there is not much he could say in mitigation. He informed this Court that the defendant had been advised of the guidelines for sentence in this case. Mr Davies submitted that the defendant played a minor role in the trafficking and the evidence showed that he was asked to be the driver when the car did not belong to him. He also asked this Court not to take into account the defendant’s previous conviction of trafficking in a dangerous drug as it was a long time ago.

Consideration and reason for the sentence

For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In the case of the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the sentencing guidelines laid down in the case of R v Lau Tak Ming [1990] 2 HKLR 370 should apply for the trafficking of cocaine.

The cocaine involved here is 45.1 grammes, which falls into the 10 to 50 grammes category, with a starting point of between 5 to 8 years. I am of the view that an appropriate starting point is one of 7 years and 8 months, bearing in mind that the starting point reflects the appropriate sentence for a first offender for a particular category and type of offence, absent aggravating and mitigating factor. While I am prepared not to take into account the defendant’s previous conviction of trafficking in a dangerous drug, the fact is that the defendant committed this offence together with another person, which amounts to an aggravating factor. I will enhance this starting point of 7 years and 8 months by 2 months to arrive at 7 years and 10 months’ imprisonment.

The defendant was found guilty after trial. There are no grounds to reduce this sentence. So for the 1st count, trafficking in a dangerous drug, the defendant is sentenced to 7 years and 10 months’ imprisonment.