HKSAR v. LIU CHI CHUNG

HCCC 32/2018

[2018] HKCFI 1672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 32 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The defendant was committed for sentence on one charge of trafficking in 67 grammes of a crystalline solid containing 50.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

Briefly stated, it is a run-of-the-mill ‘stop and search’ case. In the evening of 5 June 2017, the defendant was seen acting furtively on Wai Kei Street in Kwai Chung. Having intercepted the defendant, the police found eight packets containing ‘Ice’ (the subject matter of the charge), inside brown envelope tucked behind the waist band of his trousers and covered by his T-shirt.

Under caution, the defendant said that he had no work and was in need of money to take care of his wife and son, and therefore he accepted a promise of $2,000 from one ‘Ah-shing’ for bringing the ‘Ice’ to another person.

The market value of the ‘Ice’ then was around $22,981.

The defendant’s background

The defendant is aged 35 and turning to 36. He received education up to Form 2. He was said to be unemployed at the time of arrest. He lived in a public housing unit with his wife and young son, who is aged seven. He has a clear record but is an abuser of ‘Ice’ for about half a year before the present offence.

Mitigation

Mr Yeung, counsel for the defendant, asked the court to temper justice with mercy, by adopting a lower starting point than the one arrived at arithmetically from the applicable tariff band.

Mr Yeung said the defendant had become a hair stylist after leaving school and had his own salon in Huizhou, the mainland, where he met his wife. Later, the defendant and his wife moved back to Hong Kong so that their son could have a better education. However, owing to the high set of costs, the defendant was no longer able to afford to have his own salon here.

The defendant began being engaged in different occupations, including working in construction sites and other odd jobs and his income became unstable. Most unfortunately, the defendant began his association with some bad elements and got the drug habit.

Mr Yeung emphases that the defendant is deeply remorseful for what he did. There are mitigating letters from the defendant, his mother, wife and elder sister, the contents of which I have regard. I note also that the defendant’s family is in court today to lend support to him.

Sentencing

The Court of Appeal have said that the starting point for the offence of trafficking is to be determined primarily by the quantity of the dangerous drug concerned. That the arithmetic starting point should not be departed with without reasons, and that for that purpose, the fact that the accused was a courier is not a sufficient reason. See HKSAR v Leung Kwai Ping & Anor No.2 [2003] 2 HKC 575 and HKSAR v Conde Nassou CACC 427/2014.

Based on the tariff laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking in 50.5 grammes of ‘Ice’ attracts a starting point of 9 years and 8 months. Despite my every sympathy to the defendant and his family, it is important that there should be consistency in sentencing drug cases, which is far too prevalent in Hong Kong.

It is by a consistent sentencing approach that it is hoped other people can be deterred from committing the same offence and numerous other families can be spared from the same plight that the defendant’s family encounters. I adopt 9 years and 8 months as the starting point in the present case.

I have regard to all that is said on behalf of the defendant in mitigation. However it is well-established that generally, neither financial hardship nor family circumstances may reduce the sentence for a serious offence of trafficking. See HKSAR v Li Man Wai CACC 386/2005.

In my view, the only significant mitigating factor which may reduce the defendant’s sentence is his timely plea at committal, for which he is entitled to the full one-third discount. That one-third discount would also cover the defendant’s remorse. See Secretary for Justice v Tsang Ho Pong [2009] 6 HKC 389.

Finally, I round off the defendant’s sentence to 6 years and 5 months, so that the defendant is slightly better off.

The defendant is to serve his sentence of 6 years’ and 5 months’ imprisonment.