HKSAR v. Chiu Ka Hing

HCCC 52/2023

[2024] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2023

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

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COURT: The defendant pleaded guilty in the Eastern Magistrates’ Court on 27 February 2023 to the charge of trafficking in a dangerous drug. He was committed to the Court of First Instance for sentence.

The charge alleges that on 10 February 2022, on a private car, near the junction between San Ma Tau Street and Mei King Street, To Kwa Wan, the defendant unlawfully trafficked in a dangerous drug, 94.98 grammes of a crystalline solid containing 89.55 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’).

He comes before me today for sentence, having confirmed his plea and his admission of the Summary of Facts in support.

The Facts

The Summary of Facts reveal that in the night of 10 February 2022, upon intelligence, police officers conducted an anti-narcotics operation in the area of Wyler Gardens, To Kwa Wan. At 10.42 pm, the officers spotted a 7-seater private car parked at San Mau Tau Street, near to the

junction with Mei King Street, the defendant was at the driver seat, while two passengers aged 17 and 13 and a dog were found on board the vehicle.

The officers intercepted the vehicle. Upon search of the defendant, a mobile phone and a car key were found.

A green cartoon figure bag was found on the floor of the middle row seats of the vehicle. Inside the green bag, five resealable plastic bags containing solid and a black bag contained 16 resealable plastic bags containing solid were found. At the time, cash of HK$7,439 were found in the front passenger seat storage compartment and an iPhone was found in the storage compartment between the driver seat and the front passenger seat. The passengers each carried an iPhone. They respectively carried cash of HK$2,820 and HK$2,116.5.

Government chemist later confirmed there was a total of 94.98 grammes of a crystalline solid containing 89.55 grammes of methamphetamine hydrochloride. The estimated street value of the ‘Ice’ was $50,719.

The defendant was arrested. Under caution at the scene, he admitted the green bag and all the ‘Ice’ belonged to him.

In a later video-recorded interview, the defendant admitted under caution that:

(1)  His friend, ‘Ah Kei’, knew he was in need of money and offered him a delivery job to make quick money. He later learnt it was for drug delivery.

(2)  At around 9 pm on 10 February, he obtained a bag of drugs from Ah Kei near the public toilet at Nam Shan Estate. He opened it and learnt that it contained ‘Ice’. He placed the small packets of drugs into the black bag and placed the black bag and the large packets of drugs in the green bag. He kept the green bag in his left trouser pocket.

(3)  Ah Kei told him to deliver the drugs to Ah Toi near Wellcome supermarket at Shantung Street. Ah Kei would pay him 1,000 after delivery.

(4)  After obtaining the drugs, he drove the vehicle and picked up the female and male passengers, who were respectively his girlfriend and friend, near Shek Kip Mei. He intended to go to San Mau Tau Street to buy dessert before going to Shantung Street later that night for the drug delivery.

(5)  However, the police intercepted them. Out of fear, he threw the green bag containing the drugs to the back.

(6)  The defendant had the habit of consuming cocaine for around four to five years. However, he would not consume the drugs that Ah Kei gave him.

(7)  He borrowed the vehicle from ‘Ah Fung’ two days ago. He intended to drive the vehicle to give his family members a ride.

The defendant now admits and accepts that at the material time, he was in possession of the dangerous drugs seized at the vehicle for the purpose of unlawfully trafficking in them.

The Defendant’s Antecedent and Mitigation

The defendant is 28 years old who was born in Hong Kong. He was educated up to Form 4. He had previously worked as a construction site worker, earning an average of 8,000 per month. The defendant’s mother is from Thailand and his father worked as a taxi driver. The defendant said he had little parental supervision and was led astray by bad influence.

In mitigation, Ms Alva informs the court that the defendant was truly remorseful and accepts full responsibility for his actions. The defendant did not claim self-consumption of the drugs. Ms Alva submits that the defendant committed the current offence as he was tempted to make quick money.

Counsel informs me that the defendant had been reflecting on his past actions. In her written submissions, she submits that while in remand, the defendant had been helping the staff of the Correctional Services Department to do miscellaneous tasks. Once sentenced, he wishes to take up social work studies and aspire to become a social worker upon his release from prison.

It was said that the defendant has allowed himself to be influenced by bad elements. He was determined to stay away from drugs; he had pleaded guilty at the earliest opportunity and had cooperated with the police.

Five letters have been submitted to me as part of the submission in mitigation. They all came from his family members and the defendant himself.

The defendant writes that he recognises the mistakes he made and realises the seriousness of the conduct to which he has pleaded guilty. He expresses remorse and he is keen to reform and turn a new leaf. He said he wishes to participate in community activities, instil positive thoughts and behaviour of different ages to avoid them going astray.

The letters from his father, mother, and sister all described the defendant as a good-natured person and a filial son. His mother blamed herself for not raising him right. They asked the court to pass lenient sentence.

Sentencing Principle and Tariff

It is well established that trafficking in a dangerous drug is a very serious offence. In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence, and punishment.

In sentencing, I shall follow the six-step approach enunciated by Herry Jane Yusuph.

The first step is to assess the gravity of the offence. In relation to ‘Ice’ pursuant to the sentencing guidelines articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for the quantity of 89.55 grammes of ‘Ice’, the defendant is in the band of 70 grammes and 300 grammes, where the starting point for traffickers after trial subject to any enhancement, is 11 to 15 years’ imprisonment.

The second step is to assess the defendant’s role and culpability based upon the evidence. Herry Jane Yusuph recognises that the role of an accused in aspects of trafficking can vary significantly. At paragraph 59, Macrae VP states:

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.

The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. The assessment made in the second step is relevant to determining where within the band or outside the band the defendant comes.

Ms Alva submits the defendant’s role comes within the category of a courier. It is not entirely plain from the facts of the case what the role of the defendant was and I will sentence him upon the basis that the most likely role of the defendant was that of a courier.

I therefore accept the relevant Tam Yi Chun sentencing band of 11 to 15 years’ imprisonment for the quantity of ‘Ice’ I have just mentioned should be applied in this case. The mathematically calculated weight-based starting point is one of 11 years and 4 months.

Taking into account the role and culpability of the defendant, I do not find any justification for departing from that starting point.

The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. There is an aggravating factor in this case.

The defendant had seven previous convictions, two of which were concerned with dangerous drugs. There were two prior convictions for trafficking in dangerous drugs, for which he had received 26 months’ imprisonment in the District Court in January 2018; 42 months’ imprisonment for conspiracy to traffic in dangerous drugs in the District Court in August 2023.

Accepting that the sentence could be enhanced for the aggravating feature of the defendant being a persistent offender, the court was urged not to enhance the sentence to avoid double counting for reasons that his earlier sentence for conspiracy to traffic in dangerous drugs on 30 August 2023 had already considered the enhancement.

I have read the reasons for sentence in DCCC 970/2022 in Chinese, I noticed that the Deputy District Judge Kenneth Chan did not enhance his sentence for reasons that he is a repeat offender (see paragraph 35). What the Deputy District Judge said, appears to me, is that he cannot be overly lenient to the defendant having regard to his role and culpability as a manager or organiser and that he is a person of prior conviction. He enhanced the sentence for 6 months because of the prosecution’s application under section 56A(1)  of the ordinance given that the facts of the case involved the use of young persons to carry or deal in dangerous drugs (see paragraph 37).

As for enhancement of sentence for the defendant’s previous convictions, Macrae VP in HKSAR v Har Tsz Yui [2019] HKCA 1336 sets out the principles in paragraphs 15 to 19. First, it is open to the judge to enhance the sentence of the defendant because of the repeated nature of reoffending in respect of serious offences.

Second, the aggravating feature of a defendant being a repeat offender, whatever the offence, is not susceptible to an arithmetical application of percentage enhancements; but would depend on the nature of the offence, its seriousness, circumstances of the individual, the degree of the defendant’s persistence in committing the particular category of offence, and the need for personal and public deterrence.

Third, it is a matter within the judge’s sentencing discretion. Further, the enhancement should be reasonably proportional to the basic sentence so it is not to result in an overall excessive sentence.

Later, the Court of Appeal in HKSAR v So Yat Ting (CACC 175/2019)  also held that when determining an enhancement against a recidivist, a court should ensure that:

(i)  the original starting point must be proportionate to the actual sentence; and

(ii)  the degree of enhancement must be in reasonable proportion to the basic sentence, and the total should not be excessive.

The matter which has given me cause for concern is that this is the defendant’s third offence for trafficking in dangerous drugs. The facts giving rise to the defendant’s last conviction for conspiracy to traffic in dangerous drugs took place between March and May 2021. The present offence of trafficking in dangerous drugs was committed on 10 February 2022. The defendant committed this similar offence of trafficking in dangerous drugs in a relatively short period of time after May 2021. It is not, therefore, realistic to say that the defendant has changed his ways.

Drug trafficking is a very serious offence and there is the added need to deter drug traffickers who are repeat offenders. Taking into account what Ms Alva submitted and what the Deputy Judge said in the District Court case, I still regard this as an aggravating factor and deserving an enhancement of the starting point. But I consider an appropriate adjustment to the starting point to be one of 2 months’ imprisonment. Therefore, the notional starting point, had the defendant been convicted after trial for this offence of trafficking, would be one of 11 years and 6 months’ imprisonment.

Fifth, I am required to have due regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional.

Ms Alva very sensibly accepted there are no exceptional mitigating circumstances concerning the defendant in this case to support a discount on sentence apart from the defendant’s early plea of guilty. The real mitigating factor in this case is the defendant’s timely plea. I will give a full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. I reduce the overall starting point to a term of 7 years and 8 months’ imprisonment.

The sixth and final step is to stand back and look at the overall sentence in order to ensure it is a fair, just, and balanced sentence in all the circumstances of the offence and the offender.

I am of the view that the ultimate sentence of 7 years and 8 months’ imprisonment is appropriate and it is not out of proportion to the defendant’s overall criminality.

But there is one last matter. The defendant is already serving a sentence of 42 months in the case of DCCC 970/2022. The date, the time, and the place of that offence are different from the count that the defendant is sentenced on by this court.

In principle, the sentence of the present offence, that is 7 years and 8 months’ imprisonment will have to run totally consecutive to those 42 months. However, having considered the principle of totality when sentencing you today for this offence and what sentence you are already serving, and the overall totality of sentence to which the defendant was subject, I order 18 months to be served concurrently with the District Court case, and that 6 years 2 months out of the 7 years and 8 months’ imprisonment I passed on the defendant in this case is to run consecutive to the 42 months’ imprisonment in the District Court case.