HKSAR v. LEE HO YIN

HCCC 314/2019

[2020] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 314 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 in this matter was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. It is alleged that he, on 13 February 2019, outside No. 17 Un Chau Street, Sham Shui Po, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely 25.57 grammes of a crystalline solid containing 24.80 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’).

He pleaded guilty to the charge before the magistrate at the committal stage and was committed on 16 September 2019 to the Court of First Instance for sentence.

He comes before me today for sentence, having confirmed his plea and admission of Summary of Facts.

Facts of the case

The facts as agreed by the defendant are as follows: At around 3.12 am on 13 February 2019, a team of police officers patrolled to Un Chau Street in the direction of Nam Cheong Street, Sham Shui Po, where they saw the defendant acting suspiciously, looking around constantly with his hands in his jacket pockets. The officers intercepted the defendant and brought him to outside No. 17 Un Chau Street for a body search. In the right pocket of the defendant’s jacket, the police found two red packets containing a total of three plastic bags of suspected dangerous drugs, ‘Ice’, and an electronic scale. The defendant was also found to have HK$600 cash and a mobile phone on his person.

The defendant was arrested and cautioned, whereupon he confessed that he was in financial difficulty and thus delivered “pork” for others.

A house search was later conducted at the defendant’s residence in Lam Tin and nothing suspicious was found.

In a subsequent video-recorded interview, the defendant told the police under caution that he was unemployed and had to rely on CSSA of HK$3,810 monthly. The “pork” he referred to meant the dangerous drugs ‘Ice’. On a day before his arrest, he met an acquaintance - a local female called “Siu Fung” - with whom he had no means of contact at a park in Lam Tin. Siu Fung asked him if he wanted to earn some money to which he agreed. Siu Fung told him to wait for her call at around 9 pm on 12 February 2019. This he did, and at around 2 am on 13 February, as instructed by Siu Fung, the defendant went to Nam Cheong Street Park in Sham Sui Po, where he met Siu Fung and was told to pick up two red packets from a rubbish bin in Nam Cheong Street and to deliver them to others. The defendant did so, collected the red packets and then went to a bus stop at Un Chau Street to wait for Siu Fung’s further instruction. Whilst waiting there, the defendant opened the red packets and saw that they contained dangerous drugs ‘Ice’. He placed the two packets in the right pocket of his jacket and before he could make any delivery he was intercepted by the police. In fact, he had not yet known to whom he was to deliver the dangerous drugs. He was promised HK$500 as reward, but he had not yet received any money before his arrest. The HK$600 cash and the mobile phone found on him did not have anything to do with his drug trafficking activity.

Upon subsequent analysis, the three plastic bags of suspected drugs seized from the defendant were confirmed to be a total of 25.57 grammes of a crystalline solid containing 24.80 grammes of methamphetamine hydrochloride - the drugs particularised in the charge.

The estimated value of the drugs was about $13,987.

By pleading guilty and admitting the Summary of Facts, the defendant now accepts that he knowingly possessed all the dangerous drugs seized for the purpose of unlawful trafficking.

Defendant’s background

According to his antecedents statement and as supplemented by his counsel in mitigation, the defendant is now 64 years old. He was born in Macau and came to Hong Kong when he was 13 years old. He received education up to Form 4. He worked as a cleaner before, but was unemployed at the time of his arrest. He said he is married, but his wife is in the mainland, and he lives with his younger brother in a public housing estate in Lam Tin.

The defendant claimed to be a drug addict in ‘Ice’ since he was 33 years old and said he had been suffering from depressive illness since 2008.

He has an appalling criminal record. He has 36 previous criminal convictions involving 48 offences ranging from petty shoplifting crimes to dangerous drugs related offences. He has 29 convictions for drug-related offences, including 14 for possession of dangerous drugs and 7 for trafficking in dangerous drugs.

Mitigation

In mitigation, it was said that the only and strongest mitigating factor is the defendant’s plea of guilty at earliest opportunity. Despite his drug addiction, the defendant accepts that all the dangerous drugs seized were for trafficking and he does not make claim of self-use in any portion of the drugs.

The court is urged to take into consideration the defendant’s age and background and that there is very low likelihood of him reoffending. Concerning his criminal record, although it is accepted that the record is appalling, it was submitted on his behalf that most of his drug convictions concerning Magistracy or District Court cases, except for one conviction in 2002 pertaining to a High Court matter for which he was convicted of possession of dangerous drugs and sentenced to 2 years’ imprisonment.

On a strict arithmetic approach, Mr Fung, on behalf of the defendant, calculated the starting point to be one of 8 years or slightly less than 8 years. He urged upon the court to adopt as low a starting point within the range as possible in the defendant’s favour.

Sentencing tariffs - HKSAR v Tam Yi Chun [2014] 3 HKLRD 691

The courts of Hong Kong have taken a severe view of drug trafficking - particularly in relation to drugs such as ‘Ice’. This is because this type of drugs is highly addictive and has serious consequences for both the individual and the community at large.

Such a serious view is reflected in the maximum sentence provided for the trafficking in dangerous drugs offence under section 4 of the Dangerous Drugs Ordinance, which is one of life imprisonment and $5 million fine upon conviction on indictment. It is also reflected by the courts in the nature of sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ‘Ice’ the drugs, the subject of the charge.

The tariffs that is applicable to trafficking in ‘Ice’ is set out in the Court of Appeal’s decision in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

According to the applicable sentencing tariffs, quantities between 10 and 70 grammes of ‘Ice’ would attract a starting point of sentence of between 7 and 11 years.

And as the Court of Appeal observed at paragraph 35 of Tam Yi Chun:

“These are starting points after trials, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty. It is still for the sentencing judge to take into account, in the application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences...”

The quantity of ‘Ice’ in this case is 24.80 grammes. Thus, on a pure mathematical approach, the starting point would be around 8 years. Taking into account the involvement of the defendant and his appalling criminal record, I would adopt 8 years as the starting point.

Sentence imposed

Considering all the circumstances of the case, including the defendant’s age and background, his criminal record, the mitigating factors advanced on his behalf, I take the view that the following sentence is appropriate.

The starting point would be one of 8 years, namely 96 months. For his early plea of guilty I would give him the full one-third discount. That would bring the sentence to one of 64 months.

There being no other real mitigating factors warranting further discount, the sentence I impose is one of 64 months, namely 5 years, 4 months. So defendant, you are sentenced to 5 years and 4 months’ imprisonment.