HKSAR v. Yeung Chun Ming

HCCC 140/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 140 OF 2015

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

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COURT: The defendant, Yeung Chun-ming, a 39 year old man, has pleaded guilty before me to the two charges of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence of the 1st count is that the defendant, on 26 August 2014, at the lift lobby, 12th Floor, Hing Cheung House, Tai Hing Estate, Tuen Mun, New Territories in Hong Kong, together with Fu Wing-shun, unlawfully trafficked in a dangerous drug, namely 1.46 grammes of a crystalline solid, containing 1.44 grammes of methamphetamine hydrochloride.

The particulars of offence of the 2nd count is that the defendant, on 26 August 2014, at room 1235, 12th Floor, Hing Cheung House, Tai Hing Estate, Tuen Mun, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 25.1 grammes of a crystalline solid, containing 24.8 grammes of methamphetamine hydrochloride.

He has also admitted the Summary of Facts prepared by the prosecution. The Summary reads as follows:

“In the small hours of 26 August 2014, a team of police officers attached to DSDS TM District, conducted an anti-narcotics operation at Tai Hing Estate, Tuen Mun. At around 0338 hours, police officers observed a Chinese boy, Fu Wing-shun (Fu), leaving Room 1235, 12th Floor, Hing Cheung House, Tai Hing Estate (the premises), and acting suspiciously.

PW1 disclosed his police identity, and made inquiries of him. Following search, a small quantity of suspected “Ice” was found inside Fu’s left front trouser pocket. Fu was arrested, and upon caution said, ‘Sir, the “Ice” belonged to “Kam Mo”.’ He also said, ‘As he (Kam Mo) was busy, he asked me to deliver the “Ice” to others.’

A mobile phone, $700 and two keys were seized from Fu. Fu then led officers to the premises. A Chinese male, Lam Tsz-kwan (Lam), aged 36, was inside. Lam said he was waiting for ‘Kam Mo’. At around 0430 hours, the defendant, Chinese male Yeung Chun-ming, aged then 38, returned to the location. In the presence of the defendant, Fu and Lam, a search was conducted at the scene. Subsequently, a total of 16 plastic bags of suspected ‘Ice’ was found. Police also seized an electronic scale and a bundle of unused resealable plastic bags. All the exhibits were found inside a drawer of a mah-jong table.

Following inquiries, the defendant told the police that the exhibits belonged to him. He was arrested. Under caution, he said, ‘Sir, the “Ice” is mine. I was not free today, so I asked the kid to deliver the stuff for me. It has nothing to do with the kid.’

Fu was cautioned concerning the drugs inside the flat, and said, ‘These “Ice” belonged to “Kam Mo”, and he was not involved.’ The drugs exhibits were seized and examined by government chemist, Dr Lo Kam-moon, that is, PW8, with the following findings:

1) Recovered from Fu, 1.46 grammes of a crystalline solid containing 1.44 grammes of methamphetamine hydrochloride.

2)  Recovered inside the premises, 25.1 grammes of a crystalline solid containing 24.8 grammes of methamphetamine hydrochloride.

The defendant was interviewed under caution on video. In gist, he confirmed that the ‘Ice’ seized from Fu belonged to him, he had given the drugs seized from Fu to him, at around 0100 hours. He left home and phoned Fu, asking him to deliver the drugs to someone at 11th Floor of Hing Cheung House. Lam was his friend, the defendant refused to disclose the source of the drugs and the price. He used the scale to weigh the drugs. He had the habit of abusing ‘Ice’ using straw and aluminium foil. The transparent bags were used to pack the drugs. His nickname was ‘Kam Mo’, and the person to whom Fu was to have delivered the drug was ‘Sai Shing’. The street value of the dangerous drugs was estimated at $11,315.”

According to AG v Ching Kwok Hung [1991] 2 HKC 125, and HKSAR v Tam Yi Chun CACC 524/2011, 9 June 2014, unreported, for trafficking up to 10 grammes of methamphetamine, commonly known as “Ice”, the sentence should be 3 to 7 years’ imprisonment. And for trafficking in 10 to 70 grammes of “Ice”, the sentence should be 7 to 11 years’ imprisonment.

For the present case, the 1st count involves 1.44 grammes of “Ice”, and the 2nd count involves 24.8 grammes of “Ice”. The respective starting point, mathematically, should be imprisonment for about 3 years and 8 years. For a serious crime such as trafficking in a dangerous drug, the defendant’s personal and family circumstances are not considered as having any mitigating effect.

On the other hand, there is an aggravating feature in that the defendant had asked Fu Wing-shun, a young man of under 15 years of age at the time to assist him in delivering the drug, under the 1st count, to somebody. See Section 56(a) of the ordinance, and HKSAR v Ng Hon Keung CACC 211/2011, 26 January 2012, unreported. However, the defendant, upon his arrest, frankly admitted to the police that the “Ice” under the 1st count, that was found with Fu Wing-shun, had nothing to do with the young man because it was he who had asked the young man to deliver it.

Mr Cheng, counsel for the defendant, submits that the defendant was living with the young man in the same flat of Room 1235; the flat was the residence of the young man with his mother, but the mother was no longer there at the time. At the time of the offence, the defendant was not in the flat, and it was merely for convenience, and not for exploitation that he called to ask the young man to deliver the “Ice” under the 1st count to someone.

The defendant is extremely remorseful, and upon being arrested by the police, he took full responsibility for what he had done. This notwithstanding, I consider that there must be some enhancement of sentence for having involved a minor in delivering a dangerous drug.

Mr Cheng also submits that part of the “Ice” under the 2nd count was for the defendant’s own consumption. This fact was evident from what he admitted, indicating that he was an “Ice” user and also from his not less than seven previous conviction records relating to possession of dangerous drugs and smoking equipment.

I do not hold this previous record as an aggravating factor against him, as none are related to drug trafficking.

In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal said, and I quote:

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant. We need to emphasise that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

And

“20. As pointed out by the judge, possession of ‘Ice’ for personal consumption is also an offence in itself. Furthermore, we must be not overlook the latent risk that the portion of the drug intended for the appellant’s own consumption may be given or sent to others.”

I adopt a starting point of 3 and a half years’ imprisonment for the 1st count, which has included the enhancement of 6 months from the mathematical starting point of 3 years for the defendant involving the young man under this count.

Taking into account all the circumstances of this case, especially that part of the “Ice” under the 2nd count was for the defendant’s own consumption, I consider a starting point of 7 years’ imprisonment for the 2nd count being appropriate. There are no other mitigating circumstances. The defendant is, however, entitled to a full one-third discount for his guilty pleas.

In the result, for the 1st count, the sentence is 2 years and 4 months, whereas the sentence for the 2nd count is 4 years and 8 months.

Taking into account the totality principle, I order 4 months of the sentence for the 1st count to run consecutively to the sentence for the 2nd count. The defendant is therefore sentenced to imprisonment altogether for 5 years.