HKSAR v. Chan Siu Hei

HCCC 96/2022

[2023] HKCFI 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 96 OF 2022

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  6 January 2023

Date of Sentence:  6 January 2023

Date of Reasons for Sentence and Forfeiture:  6 January 2023

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REASONS FOR SENTENCE AND FORFEITURE

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1.The defendant pleaded guilty to one count of trafficking in 26.6g of methamphetamine hydrochloride, contrary to s4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on 27 June 2022 before the Eastern Magistrates’ Courts and has confirmed that plea today.

2.The defendant was intercepted by officers at 9:00pm in the evening of 3 January 2021 whilst he was walking in Hung Hom. Upon search two plastic bags were recovered from his trouser pocket containing the dangerous drugs.  He was also found to have a mobile phone and HK$44,116 in cash upon him.  The defendant told the officers that the ice was for his own consumption upon arrest and caution but by reason of his plea, now accepts he was trafficking in those drugs.  The drugs which were recovered had street value of $14,709.

3.The defendant is 21 years of age, single and lives with his parents who both have to claim CSSA.  Mr Wong submits that the defendant was a delivery worker at the time of his arrest earning some HK$16,000 per month although he did not mention this to the police for the purpose of his antecedent statement or in his VRI, nor did he suggest to the police that he was a drug addict in his antecedent statement.  He has two matters on his criminal record which are not related to drugs.  He was last discharged from Sha Tsui Correctional Institution on 28 August 2017.

4.The relevant sentencing guideline for the offence of trafficking in ice is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  For trafficking in between 10g to 70g of ice the sentencing range is between 7-11 years.  For trafficking in 26.6g of ice, I consider an appropriate starting point after trial in all the circumstances of this case to be 8 years.

5.I have taken into consideration what has been said on the defendant’s behalf, which was rather limited but Mr Wong was constrained from offering further assistance to the Court.  Trafficking of dangerous drugs is a very serious offence.  Deterrence is therefore an overwhelming consideration.

6.Nothing else has been said which, at this stage, could warrant a more lenient course than would otherwise be the case and so the sentence which I pass, after a full one third discount for the defendant’s plea at the earliest opportunity, is one of 5 years 4 months.

7.The defendant is in possession of over HK$44,000 at the time he was stopped and searched.  He had not one but two packets of ice on him and although he lied and said they were for his own consumption, he has now admitted he was in the process of trafficking in those drugs.  Those two packets were worth approximately HK$14,000 in their own right.  He came from a humble family living on CSSA and said he worked on a causal basis but declined to say how much he earned at that point in time, as is his right.  The defendant was given an opportunity to give evidence to show that the HK$44,116.20, or any part of it, came from a legitimate source and he declined to do so.  I find there was a prima facie connection between the sum recovered and the offending in question as the defendant was in the process of supplying drugs at the time of arrest.  I draw the irresistible inference these monies were the profit from his engagement that evening and that section 56(1)  applies.

8.A forfeiture order is made in terms of the application including the forfeiture of items 10-15 thereon.

Mr Raymond HM Chan, SPP(Ag.)  of the Department of Justice, for HKSAR

Mr Gordon Wong, instructed by C. F. Lee & Co., assigned by the Director of Legal Aid, for the defendant