HKSAR v. CHUNG KAI LUN

DCCC 1/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges, the first being trafficking in a dangerous drug, namely 7.78 grammes of a crystalline solid containing 5.82 grammes of “Ice”. Charge 2 is possession of a Part I poison, four tablet fragments containing sildenafil.

2.  The facts are straightforward.

3.  At about 5 pm on 5 November last year, a team of plainclothes police officers came across the defendant in Shau Kei Wan.  They saw his hand covering or hovering over his right trouser pocket, thought it was suspicious and stopped to make enquiries.  Their suspicions proved very accurate and in that pocket they found the “Ice” and the four tablets.

4.  Under caution, the defendant told the police that the drugs were for his own consumption.

5.  A house search was conducted, with no paraphernalia or other drugs found.

6.  Later, in a video recorded interview, the defendant frankly admitted that the drugs in his pocket were to be delivered on behalf of a drug trafficker.  He admitted acting as a drug courier.  As a reward, he would receive one of the packets of “Ice”.  He also told the police that he bought the Viagra without a prescription for $10.

7.  The defendant’s best mitigation is his plea of guilty.

8.  The defendant is not a man with a clear record. He does have previous convictions.  He has nine previous convictions obtained in six court appearances and in a High Court case of 2003 he was sentenced to 7 years’ imprisonment for two counts of trafficking dangerous drugs.

9.  In mitigation, I have been told that the defendant is 34 years old, single but with a steady girlfriend.  He is a chef by profession and at the time of his arrest was working as a Mexican restaurant chef, earning $13,000 a month, of which $6,000 he gives to his family.  He lives with his family at home.

10.  Prior to that job, he had actually been earning substantially more, $20,000 a month, but chose a lesser paid role because of the challenge of a new cuisine.

11.  I have also been told that his father is retired and suffering from nasal cancer as well as various other serious illnesses. His mother is working as a part-time helper.

12.  I have been told that his mother is in court to support him today, as is a social worker.

13.  The defendant actually has been involved with drugs for some time, starting in 2003, and after he was released from his sentence for trafficking drugs he stayed off drugs for a while.  However, in 2008 he began to take “Ice” again.

14.  I have several letters of mitigation, one being from the defendant himself and he explains that he experienced some family pressure, mainly due to his father’s serious illnesses, which led to some financial pressure.  He is extremely remorseful and sorry for continuing to disappoint his family, but he intends to turn over a new leaf.  He has promised his family and his girlfriend that when he is released he will not become involved with drugs again. 

15.  He also frankly admits that it was the influence of bad peers that led to his drug problems and this is a classic example of an addict being led astray by those that use addicts to their advantage; using them as couriers.

16.  I also have a letter from the defendant’s mother. She makes no excuses for him, but she shows her continued support and hopes that the court will treat him with some leniency.  She too explains that her husband being recently diagnosed with a serious illness led to the defendant feeling he was under pressure.

17.  There is also a letter from the Christian New Life Association, an association that helps drug addicts.  The pastor, who is the author of this letter, is giving the defendant some help and counselling whilst in remand, and I hope this association will continue to give the defendant some support and guidance after he is released from this sentence, but the defendant has to realise that he has to want help for it to be of any benefit.

18.  I also have two employers’ letters - a present employer and his past employer - which is full of praise for the defendant as an employee.

19.  In mitigation, Mr Donald has submitted that, according to the defendant’s own admissions in his video recorded interview, some of the drugs were for his own consumption.

20.  The prosecution do not challenge that submission, that part was for his own consumption and, in fact, there is a urine test conducted by the Correctional Services Department that confirms amphetamine was in the defendant’s urine when he was placed in remand.

21.  There are guidelines for trafficking “Ice” and the court takes into account the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125.  The relevant tariff here is that, where up to 10 grammes of “Ice” is involved, a 3- to 7-year term of imprisonment would be appropriate.

22.  Mathematically speaking, 5 grammes of “Ice” would attract a 5-year starting point.  Here, we have 5.82 grammes of “Ice”.

23.  Defendant, please stand up.

24.  In coming to an appropriate starting point, I have taken into account mitigation put forward, the facts of the case, your role, and your ultimate co-operation with the plaintiff.

25.  Having taken those factors into account as well as the quantity of the drugs and the authority I have just referred to, I will take a starting point of 4 years and 9 months.

26.  I accept the submission in mitigation that part of the “Ice” was for your own consumption and Mr Donald has referred me to the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, where the Court of Appeal is of the view that when part of drugs found on a defendant can be for their consumption, then a discount of between 10 to 25 per cent from the starting point can be considered.

27.  Accordingly, I will reduce the starting point of 4 years and 9 months by 9 months.  That is just over 15 per cent.

28.  The starting point is reduced to one of 4 years.

29.  The defendant has pleaded guilty and is entitled to a discount of one-third.

30.  After that discount is applied, for Charge 1, the defendant is sentenced to 2 years and 8 months’ imprisonment.

31.  For Charge 2, a fine is entirely appropriate.  I impose a $500 fine.

32.  The defendant is in breach of a suspended sentence imposed a few days before his arrest for this case.  I intend to activate part of that suspended sentence in view of the fact the nature of that offence is different to this case. 

33.  I activate 1 month of the 2 months’ sentence imposed in Eastern Magistracy case, E3109/2015.  That 1 month is to be served consecutively to the 2 years and 8 months of Charge 1.

COURT: Do you understand that sentence?

DEFENDANT: Yes.