HKSAR v. Lai Man Chung

HCCC 123/2023

[2023] HKCFI 2185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 123 OF 2023

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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 142.1g of methamphetamine hydrochloride contrary to S4(1)  (a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on 29 September 2021, before the Eastern Magistrates’ Courts on 8 May 2023.

2.At 6:07pm on 29 September 2021, the police stopped and searched the defendant as he was about to alight from a taxi outside of Kwong Yau House, Kwong Fuk Estate, Tai Po.  They recovered 23 re-sealable plastic bags of suspected dangerous drugs concealed in his pockets and underpants as well as cash and a mobile phone.  The packets contained a total of 142.1 g of ICE.

3.The street value of the drugs recovered is estimated to be in the region of HK$118,075.

4.The defendant was arrested and cautioned, at which time he admitted that the drugs belonged to him.  In his subsequent VRI, he said that he had obtained the drugs from a friend and intended to sell them to make money.

5.The defendant is 24 years of age and single.  He was educated up to Form 5.  He lived with his father, mother and sibling on the Pak Tin Estate.

6.On 30 June 2023, the defendant was convicted after trial of conspiracy to traffic in 505 g of Heroin and was sentenced to a term of imprisonment of 18 years 7 months by Recorder Derek Chan SC.  That offence took place between 5-14 September 2020 when this defendant recruited another person to receive a parcel from Malaysia which contained dangerous drugs for a reward of HK$4,000.  The defendant was uncooperative with the Customs & Excise on arrest and was convicted unanimously by the jury after trial.  In sentencing this matter it is important to note that the defendant was given bail on 1 March 2021, prior to his committal on 30 August 2021 and committed this offence on 29 September 2021. That shows a total disdain for the law and is an aggravating factor.

7.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 70-300 g of ICE, the sentencing range is between 11-15 years.  For trafficking in 142.1 g of ICE, I consider an appropriate starting point after trial in all the circumstances of this case to be 12 years 3 months’ imprisonment. However, I have mentioned that this offending took place less only 7 months after the defendant had been released upon bail and one month after committal to this Court, for matters of conspiracy to traffic just a year previously and for which he received a sentence of 18 years 7 months’ imprisonment after trial.  This is wholly unrelated offending more than a year after his first offending and having recently been released on bail, which is an aggravating feature and therefore this sentence will be enhanced by 3 months to 12 years 6 months. 

8.Nothing else has been said which, at this stage, could warrant a more lenient course than would otherwise be the case.  The sentence which I pass, after a full one third discount for the defendant’s plea at the earliest opportunity, is one of 8 years 4 months’ imprisonment.

9.I have considered the issue of totality and the authorities placed before the Court including R v Tong Hoi fung [1988] 1 HKLR 610, HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Leung Ting fung [2015] 1 HKC 290, which do not stand on all fours with the facts of the offending before me.  I do not wish to send the message to drug traffickers that they have carte blanche to continue to offend when they are given bail for very serious offences because the principle of totality will protect them from a consecutive sentence.  Nor do I wish to suggest that, because of the manner in which drug trafficking is sentenced at the higher end of the weight bracket, subsequent offending of lesser weights will automatically be subsumed within the larger figure.  That is not necessarily the case.  It will depend upon all of the circumstances placed before the Court.

10.The defendant received a substantial sentence under HCCC 175/2021.  This offending was wholly distinct and entered into almost immediately and knowingly.  The defendant was wholly culpable and blameworthy.  In accordance with S68 of the Criminal Procedure Ordinance, Cap 221, the defendant will go to prison for 8 years 4 months, 2 years of which will be served concurrently with his sentence under HCCC 175/2021.

11.Forfeiture- Order in terms.

Mr Isaac Guan, SPP(Ag.), on behalf of the Department of Justice, for the HKSAR

Mr Ken Ng, instructed by Wong & Co., assigned by the Director of Legal Aid, for the defendant