HKSAR v. Ho Chi Wai

HCCC 27/2023

[2023] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 27 OF 2023

__________________________

__________________________

___________________________________

REASONS FOR SENTENCE

___________________________________

1.The defendant pleaded guilty to one count of trafficking in 60.7g of methamphetamine hydrochloride contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 30 January 2023, before the Eastern Magistrates’ Court.

2.In the early hours of 16 December 2021, the police carried out an anti-narcotics operation in which they entered Room 2155 of Tower 2, Harbour Plaza Resort City in Tin Shui Wai. The defendant was in the room along with another person. A search was carried out of the defendant’s bag in which were found 4 re-sealable plastic bags containing the ICE as well as HK$19,730 in cash, an electronic scale and 4 mobile phones. In a VRI the defendant admitted the drugs belonged to him and that he had purchased them from an unknown man at a price of HK$4,000 per packet. He intended to sell each packet for HK$5,000.

3.The street value of the drugs recovered is in fact estimated to be HK$36,784.

4.The defendant is 44 years of age and single. This is no surprise as he has had little chance to spend much time in society since a very young age. He has a significant criminal record which goes back to 1992 when he was 13 years old. At that time, for two offences of burglary, he received a probation order. He breached that order within the year and was sentenced to Detention Centre. A few months later, in 1993, he was before the Courts again for s19 Wounding for which he received a Training Centre Order. He is therefore unlikely to have spent much time at liberty in 1993. During the period of that Training Centre Order he was dealt with for Attempted Burglary which received the same disposal. It is unknown how long that Order was in effect but it is likely he would have been under the supervision of the Director of Correctional Services for a period of approximately 2 years. He could not have been out of trouble long upon his release from that Order because he was before the courts again in July and August 1996 for matters of criminal intimidation, possession of and trafficking in dangerous drugs, robbery and for being a member of a triad society. All of which he committed in what must have been a very short period of time. For that offending and at the age of 17, he received a further TC Order. That Order could not have been long over when he was sentenced for AOABH, possession, burglary and attempted burglary in 1999 and this time received DATC on each occasion. A similar pattern of offending pending release from DATC followed because in 2001 he was sentenced to 18 months’ imprisonment for AOABH, resisting arrest and possession. Thereafter, the sentences grew steadily in their severity. In 2003, he received a sentence of 24 months for 2 matters of trafficking and two separate charges of possession. In 2005, he was sent to prison for 3 years 4 months for robbery. In 2007, 8 & 9, he was before the courts for possession on each occasion and in 2010 for AOABH. In 2011, for two matters of trafficking and one of possession of a firearm without a license, he was sentenced to 6 years 3 months in prison. In 2015 there was just one matter of AOABH and then in 2017 for 2 matters of trafficking he received his last prison sentence of 8 years 1 month from DHCJ V Bokhary (as she then was). He was discharged from prison on 27 February 2021 and arrested for this offending on 16 December 2021.

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 to 11 years. For trafficking in 60.7 g of ICE, I consider an appropriate starting point after trial in all the circumstances of this case to be 10 years and 4 months’ imprisonment. There is also the aggravating factor of the defendant’s bad character and his pattern of consistent and persistent reoffending for which I intend to enhance his sentence by 8 months making 11 years in total.

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. In some ways it is all the more serious when carried out by someone whose own life has been ruined by an addiction to drugs and a voluntary return to it after he must have been clean for some period whilst in prison. He chose to facilitate the addiction of others for personal gain.

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 7 years 4 months imprisonment.

8.Forfeiture- Order in terms.

Mr Derek Lau, SADPP, on behalf of the Department of Justice, for the HKSAR

Ms Flora Cheng, instructed by Messrs Cheung & Liu, assigned by the Director of Legal Aid, for the defendant