HKSAR v. Chan Kin Shing

HCCC 7/2020

[2020] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 7 OF 2020

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

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COURT: Introduction

The defendant was committed for sentence on one charge of trafficking in 169.83 grammes of a crystalline solid containing 167.98 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

Summary of Facts

Briefly stated, on 29 January 2019, at about 1559 hours, the defendant was seen returning to the ground floor of Man Yuen Building in Yau Ma Tei and was then intercepted by a police party waiting in ambush. At that time, he was in possession of three keys to a flat mentioned in the charge, which was on the 18th floor of the same building (“the premises”).

Subsequently, the defendant was escorted to the premises for a house search. Entrance to the premises was gained by the defendant opening the door for the police. On top of a white wooden table inside, the police found a total of seven plastic bags containing the ‘Ice’ which was the subject matter of the charge.

The estimated street value of all the ‘Ice’ seized was HK$93,067.

The police also found on the same table a total of 278 empty resealable plastic bags in four packets, two electronic scales, three spoons and a roll of adhesive tape.

Under caution, the defendant said that he wanted to earn quick money and thus helped others to traffic in dangerous drugs.

Afterwards, in a video-recorded interview, the defendant said, among other things, that the ‘Ice’, the plastic bags, the spoons and electronic scales found inside the premises all belonged to a person called “Beckham”. The defendant said he had been employed by “Beckham” as a drug courier for about a month and that he would earn HK$300 for each delivery. For avoidance of doubt, I should say that despite the defendant’s admission that he had been a drug courier for about a month, I would only sentence him on the basis of the charge to which he had admitted.

Defendant’s Background

The defendant was already aged 21 at the time of the offence. He is now aged 22 turning 23. He received education up to Form 6. After that, he studied in the Institution of Vocational Education for a short while and dropped out. He was employed as a part-time storekeeper at the time of the arrest.

He lived with his father, uncle and grandmother and he has lost contact with his mother since he was 6 years old. He has a clear record and is not an abuser of any drugs.

Mitigation

Mr Khosa, counsel for the defendant, elaborated on the defendant’s family background and the reasons for the defendant’s committing the offence. In short, the defendant’s parents got divorced when he was still in a tender age. His father had to work and he was basically brought up by his grandmother. The father was forced to retire in 2017, having diagnosed with cancer.

As a result, the defendant became prematurely the breadwinner of the family. The defendant had at one stage ventured into a small online business selling snacks which subsequently failed, causing him to loss all his investment and landed him in debts owing to financial companies. It was at this point that the defendant encountered the dubious character called “Beckham” which offered him a chance to earn quick money by delivering dangerous drugs, and he succumbed to that temptation.

Mr Khosa drew my attention to the good relationship which the defendant has with his family, the defendant’s cooperation with the police since his arrest, his timely plea and deep remorse. There are also impressive mitigation letters from the defendant, his family members, school principals and so forth, the contents of which I have regard.

Sentencing

The Court of Appeal had said that the starting point for the offence of trafficking is to be determined primarily by the quantity of the dangerous drug concerned and the arithmetical starting point should not be departed with without good reasons. And for that purpose, the fact that the accused was a courier is not a sufficient reason (see HKSAR v Leung Kwai Ping and Anor (No 2); HKSAR v Conde Nassou and HKSAR v Kilima Abubakar Abbas).

Based on the tariff laid down in HKSAR v Tam Yi Chun, trafficking in 70 to 300 grammes of ‘Ice’ narcotic attracts a sentence of between 11 to 15 years’ imprisonment after trial. Thus, trafficking in 167.98 grammes of ‘Ice’ narcotic would carry an arithmetic starting point of almost 153 months. Despite my every sympathy to the defendant, I can see no good reason to depart from this arithmetic starting point.

It is also important that there should be consistency in sentencing drug cases which are far too prevalent in Hong Kong. It is by a consistent sentencing approach that it is hoped other people can be deterred from committing the same offence and numerous other families can be spared the same plight that the defendant’s family encounters (HKSAR v Godson Ugochukwu Okoro). As such, I adopt a round-off figure of 152 months’ imprisonment as the starting point in the present case, which is a little bit in favour of the defendant.

I have regard to all that is said on behalf of the defendant in mitigation. However, it is well-established that, generally, neither financial hardship nor family circumstances may refute the sentence for a serious offence of trafficking (see HKSAR v Lee Man Wai). As I have said, the defendant was already 21 when he committed the offence and therefore he was not of extreme young age. In my view, the only significant mitigation factor which may reduce the defendant’s sentence is his timely plea at committal, for which he is entitled to the full one-third discount. The one-third discount would also cover the defendant’s remorse (see Secretary for Justice v Tsang Ho Pong).

After the one‑third discount, the sentence would be 101 months’ imprisonment.

However, in view of the defendant’s relatively young age, his clear record and his strong family support, and with the hope of giving some encouragement for the defendant’s rehabilitation, within my limited discretion, I am prepared to temper justice with mercy by reducing his sentence a little bit. The defendant is sentenced to 100 months’ imprisonment.