HKSAR v. CHOW WING YIP

HCCC 238/2020

[2021] HKCFI 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 238 OF 2020

________________________

________________________

________________________

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

________________________

COURT: The defendant was charged with an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The particulars were that the defendant, on the 19th day of December 2019, in Mongkok, unlawfully trafficked 21.7 grammes of a crystalline solid containing 21.4 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Admitted Facts

The facts admitted by the defendant disclosed that on 19 December 2019, police officers were conducting an anti-dangerous drug operation in the vicinity of Tung Choi Street and Shantung Street. They spotted the defendant walking quickly and pressing his right hand onto to his right trousers pocket.

The defendant was intercepted for investigation. Upon search, a piece of tissue containing a transparent resealable plastic bag containing what was later found to be 21.7 grammes of a crystalline solid containing 21.4 grammes of ‘Ice’ was found inside the defendant’s right front trousers’ pocket. The defendant was arrested and under caution, he stated that he was delivering the drug ‘Ice’ to a client to earn some money. The defendant was in possession of, among other things, a mobile phone and cash of $102.

A video-recorded interview was conducted with the defendant in which the defendant admitted that the substance in his trousers pocket was dangerous drug ‘Ice’ and he was to deliver it to a client at Fa Yuen Street. He would receive $300 when he successfully delivered the ‘Ice’ to the client.

The estimated street value of the dangerous drug in question was about HK$11,000.

Background and mitigation

The defendant is now 62 years of age. He is not a man with a clear record. He had 10 court appearances and had a total of 13 convictions of which five were drug-related. Two of these drug-related convictions were for trafficking in dangerous drug. The other three were for possession of dangerous drug. The non-drug-related convictions were mostly theft, shoplifting. He also had one conviction of claiming to be a member of a triad society and one for assault occasioning actual bodily harm.

The defendant is said to be married but live alone. He was a CSSA recipient. Ms Lisa Remedios, your counsel, in mitigation submitted that the defendant was married with no children. Your wife lives in Kaiping, Mainland, and due to the COVID situation she was unable to come to Hong Kong to visit you, the defendant.

Apart from referring to the sentencing guideline for the trafficking of ‘Ice’, Ms Remedios submitted that although the defendant had two previous convictions of trafficking in dangerous drugs, the convictions were recorded on the same occasion 24 years ago. And Ms Remedios urged this court not to treat the defendant’s previous drug convictions as an aggravating factor and Ms Remedios submitted that there are no other aggravating factors in this case. The defendant was co-operative with the police upon arrest and he pleaded guilty at the earliest available opportunity.

Sentence

Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drugs is involved. A person convicted on indictment of this offence is liable to a fine of $5 million and to imprisonment for life.

In the case of HKSAR v Tam Yi Chun, the Court of Appeal set down guidelines for the trafficking of ‘Ice’. The drug involved in this case was 21.4 grammes, which falls under the bracket of 10 to 70 grammes and with a starting point between 7 to 11 years.

For a person with a clear record, trafficking such an amount of ‘Ice’ is 21.4 grammes, in the circumstances of this case a proper starting point would have been 7 years and 9 months. That is 93 months.

Although the defendant had a rather bad record and of the five drug-related convictions, two were for trafficking in a dangerous drug, I accept Ms Remedios’ submission that both trafficking in dangerous drug convictions were actually almost 25 years ago because that was in 1995 February. So I will not enhance this starting point.

The defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount. I do not see any other grounds to further reduce the sentence. So the actual sentence for the offence of trafficking in a dangerous drug, the defendant is sentenced to 5 years and 2 months’ imprisonment, that is 62 months.