HKSAR v. CHOW FU KEUNG

HCCC 77/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 77 OF 2016

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REASONS FOR SENTENCE

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1.  At the earliest opportunity during committal proceedings, the defendant pleaded guilty to the charge he faced of trafficking in a dangerous drug, consisting of 997 g of a crystalline solid containing 950 g of methamphetamine hydrochloride, commonly known as Ice. The quantity of drugs had a street value of $328,013 at the time of the offence. Given the seriousness of the offence, the defendant was committed for sentence to this Court.

2.  The sentencing of the defendant first came on before this Court on 15 April 2016 but during the course of mitigation it became apparent that a psychiatric report should be obtained to address any possible mental health problems suffered by the defendant.  A report has been filed with the Court, and whilst the defendant has suffered with serious physical disabilities, it has not affected his mental health.  The opinion of the psychiatrist is that he has no mental illness and appears to be mentally stable.  I will go into more detail about his physical disabilities later in my reasons.  

3.  The brief facts of the case were that at about 18:38 hours on 29 August 2015 the defendant was intercepted at the Customs Arrival Hall at Lok Ma Chau Control Point upon arrival from mainland China for customs clearance.  He was searched and found inside a shoulder bag he was carrying was a plastic bag containing the drugs as specified in the charge.  He was arrested and cautioned and admitted that the substances were Ice and that he would receive $2,000 to deliver the drugs to Mongkok for someone. 

4.  In a later interview, he elaborated as to the circumstances in which he got involved in this offence.  He said he came across a friend called Ah Pui at Yun She Tau park at Yau Ma Tei and he asked Ah Pui for a job.  He told him to bring drugs from mainland China to Hong Kong for which he would receive a reward of $2,000.  Ah Pui gave him a SIM card and told him to wait for instructions.  At about 13:00 hours on 29 August 2015, Ah Pui returned to the park and told him to go to Shekou, Shenzhen and someone would call him later.  He took the train and went to Lowu, Shenzhen, and upon arrival he was contacted by phone.  He was told to take a taxi to a restaurant in Shekou where he would pick up a carton box of drugs from an unknown male.  He did this but as the carton box was broken he put the packet of Ice inside his shoulder bag at the toilet of the Border Control Point at Huanggang before returning to Hong Kong.  Ah Pui had previously told him to go to Mongkok where he would receive further instructions as to the delivery of the drugs. He said he had not received the $2,000 from Ah Pui and that the money found on him of $2,397 and RMB320 were his savings. 

5.  The defendant is 48 years of age.  He was born in Hong Kong and attained secondary school education.  He worked between 1982 and 1987 as a toolmaker, but it appears thereafter he was unemployed and in receipt of welfare assistance from the government in the sum of $3,300 per month.  He has an appalling criminal record of 30 prior convictions which commenced when he was 20 years old.  He has prior convictions for robbery, theft, unlawful possession of dutiable goods, conspiracy to defraud, and possession and trafficking of drugs, for which he had received an array of penalties ranging from fines, detention at a drug addiction treatment centre, probation and terms of imprisonment.  He was last discharged from prison on 2 May 2014 for drug and theft offences.

6.  A significant number of the defendant’s prior convictions are for drug and drug related offences and it is clear that he has a serious drug addiction problem.  He was once married some 10 years ago, and I am now told his wife has recently made contact with him and has come from the mainland to give him support and assistance in his time of need.  At the time of the offence he lived alone with no fixed abode.  He admits that he takes Ice once a day.  He has also revealed that he has serious medical problem in consequence of his drug addiction and suffers with high blood pressure and heart disease. 

7.  On the last occasion I was informed by Mr Giles Surman, counsel for the defendant, that he has suffered a series of strokes from 2010 to 2015 which increasingly got worse and resulted in paralysis to the right side of his body.  Mr Surman explained that he had for some time before the offence lived on the streets and that he agreed to transport the drugs for Ah Pui to obtain some money to arrange accommodation.  He submitted that because of the defendant’s desperate circumstances, he got involved in this offence. Although, it was realistically acknowledged by Mr Surman on behalf of the defendant that he also needed money to fund his drug addiction. 

8.  Upon inquiry, I was informed that the defendant suffered the latest stroke in April 2015 for which he was hospitalised from 12 to 23 April 2015.  Notwithstanding the defendant having suffered a stroke, he still got involved in this offence which occurred in August 2015.  Mr Surman, however, has pointed out that because of his physical condition as a result of the stroke, he wanted to secure some form of accommodation instead of living on the streets.  It seems that the latest stroke has had a serious debilitating effect on the defendant that has affected him both physically and to some extent mentally.  As a result, it seemed likely that his mental faculties may have been impaired at the time of the offence in that he may not have appreciated the full consequences of his actions.  That was the reason why I called for a psychiatric report which as I have mentioned has been tabled before the Court and I referred to the contents of it at the outset of my reasons. 

9.  As to the defendant’s medical condition, Mr Surman confirms that he has been receiving appropriate medical care and attention since his time in custody and his physical disability is being accommodated by the authorities at the Correctional Services Department. 

10.  This is a tragic case which highlights the dreadful misery that drugs can have on a person’s life.  The defendant has had a serious drug problem for many years and it would appear that it has taken its toll on him by the series of strokes that he has suffered.  It would also appear that for many years prior this offence he was living a lonely life, mainly on the streets.  The defendant has been given occasions to rehabilitate himself by attending a drug addiction treatment centre but this has unfortunately for him had no effect on ridding his drug addiction. 

11.  I will bear in mind his personal circumstances and the nature of his involvement in this offence when applying the relevant sentencing guidelines.  I should point out, however, that a person’s medical condition will seldom be a basis for reducing the sentence of a crime of gravity.  See HKSAR v Bayanmunkh [2012] 2 HKC 233, 238.  The Court of Appeal has stressed on numerous occasions that the gravity of the crime of drug trafficking is such that it may result in otherwise mitigating factors having little, if any, weight.  This is because of the grievousness of the offence and for this reason the courts will not be swayed by the plight of the trafficker. See HKSAR v Daresa Mariam Guma, CACC 155/2012, 5 October 2012, unreported, per McWalters J (as he then was).  The most significant mitigation that has been advanced on the defendant’s behalf is his timely plea of guilty, for which he will receive a one-third discount. 

12.  According to the sentencing tariff laid down in AG v Ching Kwong Hung [1991] 2 HKLR 125 and HKSAR v Capitania [2004] HKCU 926 for a quantity of Ice of over 600 g a sentence should range from 18 years upwards.  The question of an appropriate sentence for very large quantities of Ice was addressed by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, where theguidelines in HKSAR v Abdallah [2009] 2 HKLRD 437 were applied to very large quantities of Ice.  The tariff now fixed for a quantity of Ice of 600 to 1,200 g is 20 to 23 years’ imprisonment.  This decision was handed down on 9 June 2014 and the tariffs set out there apply to persons who commit the offence of trafficking in Ice from that date. 

13.  There is an international element in the circumstances of this offence by the defendant bringing the drugs into Hong Kong from mainland China which would normally warrant an enhancement to his sentence.  I will not do so in the exceptional circumstances of this case, given the state that the defendant was in at the time of the offence and that he was suffering physically and to some extent mentally because of the consequences of the strokes that he had sustained. 

14.  I will adopt a starting point of 22 years’ imprisonment which I will reduce by one-third for his plea of guilty to 14 years and 8 months’ imprisonment.