HKSAR v. Au Ching Yan

HCCC 214/2022

[2023] HKCFI 1523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 214 OF 2022

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in 26.8g of methamphetamine hydrochloride contrary to S4(1)  (a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, on 5 December 2022, before the Eastern Magistrates Court.

2.In the early hours of 29 April 2021, the defendant was seen in the vicinity of Prat Avenue.  He was considered to be acting suspiciously and was asked to stop by PC 18863 but instead tried to get away.  During the chase, the defendant was seen to discard 2 re-sealable packets of drugs into a cardboard box.  The two bags contained 26.8g of ICE. He also had on him, HK$7,376 in cash and 3 mobile phones.  Upon arrest and caution the defendant said the ICE was for his own consumption.  He maintained that stance in interview.  He said the HK$7,376 represented the repayment of a debt from a friend.  By reason of his plea, he accepts he was trafficking in those drugs.

3.The value of the drugs recovered is estimated to be HK$14,933.

4.The defendant is a Chinese national.  He is 36 years of age, single and lives with his mother and sister.  He was educated up to Form 5 in Hong Kong but then studied in Australia for a short while before returning to study at the Hong Kong Design Institute for a further 3 years. After graduation, he was employed as a salesman earning approximately HK$17,000 per month.  He is of good character.  Mr Luk submits that the defendant is a drug user.  This is supported by the positive test for amphetamine after arrest.  He submits that the defendant would have consumed up to a quarter of the drugs in his possession.  He has been afforded the opportunity to make that good by giving evidence on his own behalf which he has chosen not to do.  In the absence of any evidence that he is an addict or that the drugs in his possession were to be consumed by him rather than sold on that night, I am not prepared to reduce the starting point or discount his sentence for self-consumption.  The fact that the defendant tested positive for amphetamine simply indicates he had consumed some other dangerous drugs, it does not assist him as to what was to become of the drugs which he sought to throw away.  In coming to that conclusion, I take into account the fact that the two packets of drugs which form the subject matter of this offending contained large crystals weighing 13.6 & 13.7 g as a solid.  There was no paraphernalia in his possession with which to consume these crystals.  The equal weight does not suggest that any part of these drugs had been consumed.  It was 00:40 hrs in the morning.  He was in Prat Avenue in Tsim Sha Tsui but he lives in Tai Po. He had a considerable amount of cash upon him including 1000 and 500 dollar notes and not one but three mobile phones.

5.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 26.8 g of ICE, I consider an appropriate starting point after trial in all the circumstances of this case to be 8 years.

6.I have taken into consideration what has been said on the defendant’s behalf but trafficking of dangerous drugs is a very serious offence.

7.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.

8.Forfeiture- Order in terms save for items 3-10, which will be forfeited.

Mr Antony Leung, SPP, of the Department of Justice, for HKSAR

Mr Albert Luk, instructed by Ha & Ho, for the defendant