HKSAR v. Choi Man Sum

DCCC 670/2023

[2024] HKDC 1509

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 670 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. He also agreed to the Summary of Facts and was so convicted.

Facts

2.At about 10:29 am on 25 March 2023, police on patrol saw the defendant acting suspiciously. They intercepted him. The defendant was seen throwing a Hong Kong Identity Card belonging to his girlfriend on the floor. He continued to rummage with something behind his back. Police controlled his hands and found a piece of tissue paper wrapped around 6 transparent resealable plastic bags containing a total of 9.3 grammes of a crystalline solid containing 9.24 grammes of methamphetamine hydrochloride (“ICE”).

3.When the defendant was struggling, one of the said 6 bags of ICE fell from his hands onto the ground. After subduing the defendant, police picked up the bag of ICE.

4.Upon body search, one transparent resealable plastic bag containing 0.06 grammes of a crystalline solid containing ICE was further seized from the defendant’s left front trouser pocket. 2 mobile phones and HK$5,200 cash were also seized from him.

5.Under arrest and caution at the scene, the defendant stated that he had bought the 7 bags of ICE at HK$1,000 for self-consumption.

6.The estimated value of the ICE seized is HK$4,519.8.

Criminal Record

7.The defendant has 5 previous records involving convictions of 8 charges, 6 of which are drug-related. He had 3 similar drug-trafficking convictions.

Mitigation

8.The defendant is aged 33. He is single. He was born in China and came to Hong Kong in 2008. He received education up to Form 3 in Hong Kong. He now lives with his younger sister, her husband and their two children.

9.It was said that the defendant used to be a construction site worker earning around HK$25,000 a month. Unfortunately, due to economic downturn, he lost his job and resorted to trafficking activities to support his living expenses and his own drug consumption habit.

10.Defence counsel conceded that the sentencing guideline for trafficking in ICE is as set out in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and that trafficking 9.24 grammes of ICE would lead to a sentencing starting point of around 80 months’ imprisonment.

11.She also submitted that as the defendant ran out of ICE for his own consumption, he went to buy the drugs in question. He was on his way home when he was arrested. Initially, it was said that he intended to keep half of the drugs seized for his own consumption. When the court indicated that the court was not ready to accept that contention and would be willing to conduct a Newton hearing to decide the issue, the defendant withdrew that contention and said that part of the drugs was for his own consumption as he was a drug addict of ICE.

12.Defence counsel urged this court to exercise its discretion and give the defendant sentencing discount by reason of his self-consumption of part of the drugs.

13.She also handed to this court mitigation letters from the defendant, his sister, his brother-in-law and Father Wotherspoon. It was said that during the current remand, the defendant had enrolled himself and completed a certain number of courses which would enable him to take up jobs in different professions on his release. It was also said that the defendant has a supporting family and that they are willing to support him in his rehabilitation. They beg the court for leniency.

14.Defence counsel also urged this court for sentencing discount by reason of the defendant’s guilty plea.

Discussion

15.On conviction upon indictment, the maximum sentence for this charge is a fine of $5 million and imprisonment for life.

16.As conceded by defence counsel, following the sentencing guideline in Tam Yi Chun case, the appropriate sentencing starting point for trafficking 9.24 grammes of ICE would be 80 months’ imprisonment.

17.Personal background of the defendant seldom affords a sentencing discount when faced with conviction of a serious charge such as trafficking in a dangerous drug.

18.The defendant has 3 similar convictions in the past. He was last convicted of a similar offence in May 2021, for which he was sentenced to 46 months’ imprisonment. He was released in November 2022. He is obviously a persistent offender in drug trafficking. He committed the present offence less than 5 months after his release from prison for a similar offence. This constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced by 4 months, bringing the sentencing starting point to 84 months’ imprisonment.

19.By reason of his guilty plea, he is entitled to full one-third sentencing discount which brings the sentence to 56 months’ imprisonment.

20.As said earlier, although the court is not persuaded that the defendant had a significant proportion of drugs in question for his own consumption, the court is willing to accept that he is a user of ICE, for which the court is willing to exercise its discretion and give him 2 months’ sentencing discount.

21.This court has also considered the letters in mitigation. This is the fourth drug-trafficking conviction for the defendant. Although he has participated and contributed to Father Wotherspoon’s campaign, the court cannot at this point in time confidently form the view that he has contributed meaningfully to the campaign, and it is definitely too early to form this view. The court would leave the sentencing discount to be subsequently assessed by the Executive.

22.In the circumstances, the defendant is sentenced to 54 months’ imprisonment in this case.