HKSAR v. Chik Chun Bon

HCCC 408/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 408 OF 2013

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

Background and The Facts

The defendant pleaded guilty before me to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. Sentence was adjourned to today.

Briefly, the facts admitted by the defendant revealed that in the morning of 18 April 2013, the police observed the defendant returning to Room 523, Gold Coast Hotel in Tuen Mun. He was carrying a black suitcase with him at the time. Upon search, the police noticed another silver suitcase in the room. Eventually, the police found, inside these two suitcases, the drug particularised in the count, that is a total of 4.97 kilogrammes of a crystalline solid containing 4.78 kilogrammes of methamphetamine hydrochloride, commonly known as 'Ice'.

The defendant was arrested and, under caution, he said that he was asked by Ah Lun to get the drug for later distribution. The defendant repeated the same during his subsequent video-recorded interview and added that Ah Lun would give him HK$14,000 as reward. At the time of his arrest, he had been given HK$5,000 which he had spent on transport and had used to rent the hotel room.

The estimated retail value of the drug was about HK$3.7 million.

Mitigation

The defendant is aged 30 and is single. He was educated up to form 5 level. At the time of his arrest, the defendant was a salesman.

The defendant has been before the court on five previous occasions with a total of five convictions. Two of those were gross indecency with a man under 21. The others were theft, robbery and blackmail. The defendant was last sentenced by the court to 2 years’ imprisonment in September 2011 and was discharged in October 2012.

In mitigation, it was said that the defendant pleaded guilty and he is entitled to one-third reduction in sentence. Other than this, nothing more was urged on this court as constituting any significant mitigating factors.

The Sentence

The tariffs for trafficking in 'Ice' were laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania, CACC 28/2004, 11 August 2004, unreported. For trafficking over 600 grammes of 'Ice', a term of 18 years’ imprisonment and upwards is called for.

In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the guidelines for trafficking in 'Ice' in that, for amounts of 600 grammes and over, the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 are to be applied. In other words, for 4,000 grammes to 15,000 grammes of 'Ice', a term of imprisonment of 26 to 30 years is appropriate after trial.

However, the new guidelines are only applicable for offences committed after the judgment was handed down, that is, 9 June 2014. Therefore, they are not applicable in the present case, the offence of which was committed in April last year. Therefore, I would follow the Ching Kwok Hung tariffs when considering the appropriate starting point in this case.

In HKSAR v Fu Chee Chuan, CACC 559/2001, 8 August 2003, unreported, the Court of Appeal upheld a starting point of 24 years for the 4,733 grammes of 'Ice' involved, which was reduced to 20 years in view of the defendant’s old age in that case.

In HKSAR v Obi Martina Nzubechukwu [2013] 4 HKLRD 9, where 2.91 kilogrammes of 'Ice' were involved, the Court of Appeal considered that a starting point of 24 years was appropriate, having taken into account the enhancement for the international element present in that case.

Further, in HKSAR v Chan Po Wah & Another, CACC 179/2012, 26 March 2013, unreported, the Court of Appeal commented that although no revision had taken place in respect of the sentencing tariff for over 600 grammes of 'Ice' and although other sentencing decisions of the Court of Appeal in respect of very large quantities of 'Ice' could only be of limited value on sentence appeals, such decisions could assist a sentencing court in two ways: firstly, to avoid the danger of mathematical progression; and secondly, to achieve consistency in sentences.

In the present case, having considered all the relevant facts and in order to achieve consistency as far as possible, I take the view that a starting point of 24 years is appropriate for the 4.78 kilogrammes of 'Ice' involved.

The defendant pleaded guilty. He would get a one-third reduction. Other than his plea, there is nothing which would warrant any further reduction in sentence.

The defendant is therefore to serve a term of 16 years for this offence.