HKSAR v. Chan Kei Shing

HCCC 36/2020

[2021] HKCFI 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 36 OF 2020

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

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COURT: The accused was charged with one single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

(Discussion re translation)

It is alleged that he, on 18 August 2019, at customs departure hall of the Hong Kong-Macau Ferry Terminal, unlawfully trafficked in 54.2 grammes of methamphetamine hydrochloride. He pleaded guilty before a magistrate on 1 April 2020 and was committed to the Court of First Instance of the High Court for sentence.

According to the Summary of Facts to which he had admitted, the accused was intercepted for customs clearance at the departure hall of Hong Kong-Macau Ferry Terminal at about 5.54 pm on 18 August 2019 with two plastic bags of suspected dangerous drugs concealed in the left front pocket of his pants. Upon examination, those plastic bags were found to contain a total of 55.2 grammes of a crystalline solid containing 54.2 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. At the time of his arrest, the accused was in possession of a Hong Kong-Macau ferry ticket, two mobile phones and four sim cards, three hotel room key cards and cash of HK$35.

Upon his arrest, the accused stated under caution that the two plastic bags belonged to him. They contained ‘Ice’ which was a dangerous drug. They were given to him by a friend of his friend whom he had no means of contact. He would deliver the ‘Ice’ to Macau for a reward of HK$5,000.

The estimated street value of the ‘Ice’ seized was around HK$25,447.2.

(Discussion re starting over)

The accused now admits and accepts that he was in possession of the ‘Ice’ seized for the purpose of unlawful trafficking.

The accused is 39 years of age. He has received education up to Form 1. He is married with a son and a daughter, both aged 4 at the present. He had previously worked as a waiter until 2017, and then as a casual delivery worker until he became unemployed in July 2018.

(Discussion re clarification)

He had previously worked as a waiter until 2017, and then as a casual delivery worker until he became unemployed in July 2019. The accused has a total of 16 previous criminal convictions since the age of 15, none of which was drug-related. He was last sentenced to 2 years’ imprisonment for the offence of bomb hoaxes on 3 February 2017, and was discharged from prison in March 2018 about 1½ years before the commission of the present offence.

In mitigation, defence counsel Ms Vivian Wong explained that the accused committed the offence out of a financial difficulty as he was the only breadwinner in the family with two infants to support.

Regarding the present offence, counsel said his role was no more than that of a courier who acted upon instruction. As the case involved an international element, counsel invited this court to adopt an enhancement of less than 6 months. But after discussion of the relevant authority, the defence accept that the minimum enhancement should be one of 6 months.

Counsel urged this court to impose a lenient sentence taking into account the accused’s early plea of guilty, and to give him an extra reduction of sentence for the information placed before this court in mitigation. The accused himself had also submitted a letter to indicate his remorse and pleaded for leniency.

In sentencing the accused, I shall follow the approach enunciated by the Court of Appeal in the recent case of HKSAR v Herry Jane Yusuph, CACC 93/2019. I have considered the whole circumstances of the case, including the role of the accused, his personal circumstances, as well as the mitigation advanced on his behalf by defence counsel.

Trafficking in a dangerous drug is an extremely serious offence. The reasons for a person’s involvement in the offence and his personal circumstances have little weight in sentencing unless they are exceptional. Based on the evidence before the court, including the accused’s admission under caution, I am satisfied that his role was no more than a courier. The arithmetic approach is appropriate for the courier or storekeeper recognised to be the lowest rank in the trafficking hierarchy.

The quantity of drug involved in this case was 54.2 grammes of ‘Ice’ narcotic. According to the sentencing guideline in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the relevant band for trafficking in 10 grammes to 70 grammes of ‘Ice’ narcotic is between 7 to 11 years’ imprisonment after trial. On a pure arithmetic approach, a starting point of 9 years and 11 months’ imprisonment would be appropriate for trafficking in 54.2 grammes of ‘Ice’. Taking into account the role and the culpability of the accused, I therefore adopt 9 years and 11 months as the starting point for sentence.

At the material time, the accused was delivering the drug to Macau. The international element constitutes an aggravating feature which justifies an enhancement of the starting point as it is the general policy of the courts to impose greater sentences on those who import or export dangerous drugs. The starting point is enhanced by 6 months for the international element in accordance with the sentencing guideline in HKSAR v Chung Ping Kun [2014] 6 HKC 106. The notional sentence after trial is therefore 10 years and 5 months’ imprisonment, that is 125 months. The accused pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount.

Having regard to the information placed before me in mitigation, I am minded to accord him an extra reduction of sentence, making a total discount of 36 per cent from the notional sentence after trial. The ultimate sentence is 6 years and 8 months’ imprisonment.

Accused, please stand up. For the matters I have mentioned, you are sentenced to 6 years and 8 months’ imprisonment.