HKSAR v. Chung Pak Him and Another

HCCC 320/2020

[2021] HKCFI 2396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 320 OF 2020

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

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COURT: The two defendants pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug. D2 further pleaded guilty to another charge of trafficking in a dangerous drug. They were committed to the Court of First Instance for sentence.

In sentencing, I have regard to the whole of the circumstances, in particular the type and quantity of drugs involved, personal background of the defendants and mitigation put forward on their behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.

The facts of the case may be summarised as follows:

The Customs discovered the dangerous drug which was the subject matter of Charge 1 in the consignment of an incoming lorry arriving at the Lok Ma Chau Control Point. The drug was concealed in two packets of dog food. Delivery documents showed D1 was the recipient of the consignment.

A controlled delivery was conducted. When D1 had accepted the item, he was arrested. When officers approached D2 who was standing nearby acting furtively, he tried to flee but was subdued. D2 was also arrested.

Later, when a search was conducted on the car of D2, the dangerous drug which was the subject matter of Charge 2 was found. Under caution, D1 said he was collecting the item for D2 for a promised reward of $10,000. He said he did not know what the item was.

Under caution, D2 said he had been asked by a man called ‘Ah Fai’ to collect ‘Fing Tau’ for a promised reward of $15,000. He asked D1 to collect the item and promised to give him $10,000 as a reward.

As regards to the drug found on his car, he admitted that the ketamine belonged to him for his own consumption. Urine test conducted on both defendants during the period under custody showed negative results to major types of dangerous drug.

D1 is now just 18 years of age. The court was told that the defendant finished education up to Primary 6 and had worked as a waiter. He was living with his parents and the elder brothers. His father is unemployed and his mother is a waitress. He was convicted of theft in November 2016 for stealing of a bicycle and was sentenced to reformatory school. At that time, he has started secondary education but it was interrupted by this detention which lasted 1½ years. After he had been discharged, he studied at VTC for several months before starting to work as a waiter. He had worked in different restaurants.

In mitigation learned counsel for D1, Mr Michael Leung, says that D1 had came(come?)  to know D2 at a drinking occasion around six months prior to the incident. At that time, D1 was 16 years old and unemployed. He was then also a cocaine user. Knowing that he was jobless, D2 succeeded in persuading D1 to help him to receive a package for a promised reward of $10,000. D1 succumbed to temptation and committed the present offence.

Mr Leung stressed that D1, who was of young age at the time of offence is now remorseful and he pleaded guilty when the case was before the magistrate. He has been co-operative with the authority.

A letter of the defendant was presented in which he expressed remorse. He also offered his apology to his family and the community. The mother of D1, as well as a volunteer and a staff associated with the reformatory school and came to know the defendant at the school wrote letters in mitigation. They are satisfied that D1 is remorseful and pleads leniency for the defendant. It was said in the letter of the volunteer that the defendant had been diagnosed to have ADHD and it might account for the reckless and impulsive conduct of the defendant.

D2 is 25 years of age. He had worked as a warehouse operator. His father has passed away. He was living with his unemployed mother. In 2015, for possession of dangerous drug, he was fined. Learned counsel for D2, Mr James Tze, stressed that D2 had pleaded guilty at the earliest opportunity and that the role of the defendant was only that of a courier.

Letters written by the defendant’s mother and two elder brothers were produced. All said that the defendant is filial and a person of good nature, that he had worked hard in his employment and had been responsible to the family. It is said the defendant committed the present offence probably because of the temptation to earn quick money in the deprived circumstances of the family, in particular as the father who was one of the main breadwinner has passed away.

Charge 1 involves 535 grammes of dangerous drug commonly known as ‘Ecstasy’. Charge 2 involves 24.25 grammes of ketamine. For both types of drugs, the tariffs suggested in SJ v Hii Siew Cheng [2009] 1 HKLRD 1 is applicable. The Court of Appeal held in Hii Siew Cheng that in the case of trafficking in ketamine or ‘Ecstasy’, if the narcotic content is 10 to 50 grammes, a sentence of 4 to 6 years’ imprisonment should be considered and if the narcotic content is 300 to 600 grammes, a sentence of 9 to 12 years should be considered.

By reference to the quantity of the drug involved in the two charges, I am of the view that the following starting points are appropriate: Charge 1, 11 years and 4 months; Charge 2, 4 years and 8 months.

The dangerous drug which is the subject matter of Charge 1 was imported into Hong Kong, therefore there was an international element in the trafficking exercise. I also note that D1 was the named recipient of the parcel. Whilst it amounts to an aggravating factor, I am persuaded that there is no concrete evidence that either defendant was involved in the arrangement of importing and the role of both defendants was a local courier. I, therefore, do not enhance the starting point for the reason of international element.

D2 had engaged D1 in committing the offence in Charge 1. D2 was 24 years old at the time and D1 was 16 years old. Pursuant to section 56A of the Dangerous Drugs Ordinance, I shall have regard to this information and consider whether a more severe sentence should be imposed on D2 for this reason. In this regard, Mr Tze asked the court to take into account that the two defendants were friends, they were present together at the time of the collection and there was no strong indication that D2 was higher in the hierarchy.

In consideration I took into account that there is evidence that D2 had promised D1 a handsome amount of reward. Whilst it shows D2 was prepared to let D1 have a better share of the reward, he lured a young man who had not engaged in any trafficking activities before into committing this serious crime. I have had regard to cases such as HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, HKSAR v Chan Ka Shing, CACC 64/2011, HKSAR v Cheung Man Choi, CACC 50/2016, and HKSAR v Wong Chun Hin [2019] 1 HKLRD 433. Having regard to the age of D2 himself and that this was the first time he committed the offence of trafficking in a dangerous drug, reminding myself of the risk of over enhancement, in my judgment his sentence for Charge 1 should be enhanced by 8 months.

I therefore adopt the following notional sentences after trial. Charge 1, D1, 11 years and 4 months, D2, 12 years; for Charge 2, D2, 4 years and 8 months. Both defendants pleaded guilty before a magistrate. For this, each of them is entitled to a one-third discount. In all the circumstances, having regard to everything said on his behalf, I am of the view that this is the extent of discount D2 is entitled to.

D1 was 16 years old when he committed the offence. This was not the first time he committed an offence. Having regard to authority on sentencing young traffickers, I am persuaded to give him a further discount of 3 months.

D2 committed two offences. In the circumstances of the present case, in deciding the ultimate total sentence, it is appropriate to take into account the total quantity of the drug involved in the two charges which was 559.45 grammes. Thus, taking the total quantity into account and overall notional sentence after trial of 11 years and 7 months should have been appropriate. I however have to take into account the enhancement for the sentence of Charge 1 for the reason I have mentioned.

In the circumstances, having regard to totality, I adopt an overall notional sentence after trial for the two offences of 12 years and 3 months.

As D2 is entitled to a one-third discount for both charges, the overall sentence he has to serve is 8 years and 2 months.

For the above said reasons I will sentence you as follows.

1st defendant for Charge 1, I sentence you to an imprisonment term of 7 years and 3 months; 2nd defendant, for Charge 1, I sentence you to an imprisonment term of 8 years.  For Charge 2, an imprisonment term of 3 years and 1 month.  As said, the total sentence you are to serve is 8 years and 2 months.  To achieve this, I order 2 months of the sentence of Charge 2 to run consecutively to the sentence of Charge 1.  So you are to serve a total sentence of 8 years and 2 months for the two charges.