HKSAR v. CHU CHI CHIU

HCCC 204/2019

[2019] HKCFI 2716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 204 OF 2019

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarized as follows. The defendant was intercepted by police officers inside a building when he went down in a lift from 10th floor to M floor. Upon search, two cigarette boxes were found in his trousers pocket. Inside each box were two transparent resealable plastic bags, each containing dangerous drugs. The dangerous drugs were 12 grammes of a crystalline solid containing 11.84 grammes of methamphetamine hydrochloride and 21.5(21.05?) grammes of a solid containing 20.31 grammes of cocaine.

Under caution, the defendant claimed the drugs were for his own consumption. When he was brought back to his home on the 10th floor, 17 transparent resealable plastic bags put inside a larger bag and an electronic scale were found. The defendant claimed he would use the scale to make sure he would not be cheated with short weighting.

In a subsequent video-recorded interview, he again admitted possession of the dangerous drugs for own consumption and explained how he had been consuming the two types of drugs. He said he would take a dose of 0.2 to 0.3 grammes of ‘Ice’ and 0.1 gramme of cocaine each time, consuming about 2 grammes of ‘Ice’ and 2 grammes of cocaine per day. He was bringing the drugs with him since he did not want his girlfriend, who was living with him, to discover the items. He also said he would take the drugs out and consume with his friends.

The court was told that the defendant was 27 years of age at the time of offence. He received education up to Form 5 and was working as a shopkeeper at a game centre at the time of the offence, earning about 6,000 to $8,000 a month. He did not have any prior criminal conviction record.

In mitigation, learned defence counsel Mr Fong stressed that the defendant pleaded guilty at the earliest opportunity. The defendant is remorseful and his parents are in court to show support.

Mr Fong also asserted for the defendant that the total quantity of ‘Ice’ seized was intended for the defendant’s own consumption. He asked the court to take into account that the defendant had explained to the police upon his arrest that he consumed 2 grammes of cocaine every day, the market value of the drug was about $5,300 and according to the defendant’s own admission, he had consumed 2 grammes of ‘Ice’ each day and the drug therefore would only have lasted about six days of consumption.

(Discussion re daily consumption of drugs)

So upon arrest, he told police officers that he consumed 2 grammes of ‘Ice’ every day.

Report on urine test conducted by the defendant was taken into custody and reports from the United Christian Hospital showing that the defendant had been receiving substance misuse service as well as psychiatric treatment for psychiatric illness as a result of abuse of methamphetamine were produced by the defence in support of the assertion.

The defendant had trafficked in two types of dangerous drug, namely ‘Ice’ and cocaine. The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in a case of trafficking in ‘Ice’ where the narcotic content was between 10 to 70 grammes, the sentence should range from 7 years to 11 years’ imprisonment.

It has been held that for sentencing for cases involving trafficking in cocaine, the tariff in relation to heroin should be applied. In the case of R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal held that in a case of trafficking in heroin where the narcotic content was between 10 to 50 grammes, a sentence between 5 to 8 years should be considered. I see no reason in the present case to depart from these tariffs.

Both drugs attract heavy sentence but there is dissimilarity in the level. ‘Ice’ is slightly more serious as far as sentencing is concerned. The quantity of cocaine was, however, close to double than that of the ‘Ice’. I have had regard to the guidance provided by the Court of Appeal in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man, CACC 258/2017.

I will adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I have had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. In my judgment, a starting point of 7½ years is appropriate for this total quantity of drugs.

The defendant, relying solely on submission of counsel, claims that the total quantity of ‘Ice’ seized was intended for his own consumption. In this connection, I have had regard to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121 and HKSAR v Tang Xiu Yun [2015] 5 HKLRD 872 and take into account the following matters: the defendant was taking the drugs away from his home; his response when the drugs were found in which he did not mention the proportion of drug he would intend to keep for self-consumption.

In subsequent interview, he mentioned his consumption rate, the urine test conducted upon the defendant’s arrest, the hospital reports, the estimated cost of the drug, and the means of the defendant. In all the circumstances, I am prepared to accept that quite a quantity of the ‘Ice’ seized would have been intended for own consumption by the defendant despite I do not accept that the whole quantity would have been for that purpose.

In consideration, I have also taken into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed, having regard to the quantity asserted. Moreover, my assessment is that the latent risk was very high.

Having taken into account the above factors and having regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015 and the more recent Court of Appeal decisions in HKSAR v Yeung Shek Yung, CACC 314/2016 and Cheung Wai Man mentioned earlier, in my judgment, an ultimate starting point of 6½ years is appropriate.

The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances including what learned counsel said on behalf of the defendant, in my judgment, one-third is the extent of discount the defendant is entitled to in the present case.

Defendant, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 4 years and 4 months.