HKSAR v. CHUNG CHI YIN

HCCC 16/2024

[2024] HKCFI 1852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 16 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug before Magistrate Mr Tsang Chung-yiu and was committed to the Court of First Instance for sentence. The defendant had confirmed his plea before me.

2.  Particulars of the offence are that the defendant on 15 September 2022, near no.309 Nathan Road, Yau Ma Tei, unlawfully trafficked in a dangerous drug, namely 109.3 grammes of a crystalline solid containing 108.7 grammes of methamphetamine hydrochloride (commonly referred to as ‘ice’).

SUMMARY OF FACTS

3.  The facts that the defendant had admitted to are these.

4.  On 15 September, upon being intercepted by a patrolling plainclothes police officer who had revealed his Police identity to him outside the charge address at around 5:15pm, the defendant immediately fled.

5.  In the subsequent pursuit, the officer saw the defendant threw the white paper box that he was carrying away, which landed on the pavement near no.314 Nathan Road.

6.  The defendant was eventually subdued and the box recovered.  Upon search, the Police found a total of 5 plastic bags inside, which contained all the drugs in the charge.

7.  Cash of $803.8 and two mobile phones were found on the defendant.

8.  Under caution, the defendant said he was delivering the contents of the box for a $1,000 reward.

9.  The estimated street value of the dangerous drugs was about $69,733 at $638 per gramme.

10.  The defendant, through his admission to the summary of facts, admitted that he was in possession of all the ‘ice’ for the purpose of unlawful trafficking.

PREVIOUS CONVICTIONS

11.  The defendant has 15 previous convictions. He has one trafficking in dangerous drugs conviction dated 27 June 2013. There are 2 possession of dangerous drugs convictions dated 18 April 2015, and one dated 1 June 2018. Six of the convictions are related to offence involving dishonesty, with one for the possession of prohibited weapons, and one for the possession of offensive weapon, which is dated 26 February 2024.  Before this latest 2024 conviction, he was last released from jail on 17 May 2022.

BACKGROUND AND MITIGATION

12.  The defendant is 43 years old. He was born in Hong Kong and educated up to Form 5 level.  He is single and lives with his mother in Tsing Yi. He was unemployed at the time of arrest.

13.  It is the defendant’s submission that he was a drug addict at the time of the offence, as supported by the positive test result of his urine taken on 20 September 2022, which was 5 days after his commission of the present offence.

14.  The defendant was unable to find a job after his last release from jail in May due to the pandemic. To feed his addiction, he agreed to deliver the dangerous drugs for someone.

15.  It is Mr. Chan’s submission that one of the plastic bags (item (iii)  paragraph 4 in the Summary of Facts)  found inside the white paper box was his reward for making the delivery, which was 27.4g of a solid containing 27.2g of ‘ice’.

16.  Based on the then street price of $638 per gramme as stated in the Summary of Facts that the defendant had admitted to, it would appear that, at 27.2g, the street value was $17,353.60. This quantity is also 25% of the total quantity of ‘ice’ found inside the white paper box. I find it strange that those instructing the defendant to make the delivery would promise ¼ of the drugs as a reward for the delivery, knowing that the defendant was a drug addict and would be in no position to strike a bargain in the first place.

17.  Furthermore, the defendant has 2 convictions for possession of dangerous drugs, as well as one for trafficking in dangerous drugs. It is inconceivable that he was not aware that simple possession for self-use would attract a lower sentence than trafficking.  Yet, he never told the Police about that, not at scene, nor when his admission that it was done for a $1,000 reward was recorded later on, but only mentioned it through his counsel for the first time in mitigation.

18.  This submission of self-consumption is also in contradiction to what the defendant had confirmed he had voluntarily admitted to at paragraph 8 of the Summary of Facts, which states:

“D now admits that he was in possession of “ice” seized by Police for purpose of unlawful trafficking.”

19.  I indicated to Defence counsel that I may not be in a position to accept what was submitted and invited him to seek instructions from the defendant to see if he would like to enter the witness box to clarify the matter.

20.  Mr Chan took instructions and informed the court that the defendant had elected not to do so.

21.  That being the case, for the observations and analysis above, I refuse to accept that any of the dangerous drugs that the defendant was in possession of was for his self-consumption.

22.  The defendant’s mother wrote in mitigation on behalf of the defendant.  She told the court that the defendant had not contacted her for more than 10 years but had written to her after his arrest in this case.  The defendant apologized to her for wasting her time and money, and she said the defendant came across as truly remorseful.

23.  She wrote about how the defendant is an only child and was brought up by her own mother as if he was her son. The grandmother is now in her 80s and would like to be able to help the defendant get back on the right track while she still can.

24.  The defendant’s letter to her mother was produced, together with the paintings he had made for his mother and grandmother, and some drawings to show the talent he possesses. The defendant plans to become a tattoo artist after serving his sentence.

SENTENCE

25.  The maximum sentence on conviction on indictment for the offence is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

26.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1] are applied as follows.

Step 1: The applicable guideline tariff bands

27.  For 108.7g of ‘ice’, the applicable guideline tariff band is that of 11 to 15 years’ imprisonment.

Step 2: The defendant’s role and culpability

28.  Based on the summary of facts prepared by the prosecution in support of the charge against the defendant, the only finding that can be made is that the defendant was a simple courier for the drugs, and he is sentenced on this basis.

Step 3: The relevant band within the guidelines

29.  Based on my finding of the defendant’s role and culpability, I adopt a starting point of 11 years and 8 months, which is the arithmetical starting point for a courier.

Step 4: Aggravating factors

30.  Not counting the 2024 conviction, the defendant’s latest 7 convictions were for burglary, attempted burglary, 2 attempted frauds, fraud, using an identity card relating to another person, and theft.  He was last released from imprisonment on 17 May 2022. The defendant committed the present offence a mere 4 months after his release.

31.  I find that the defendant is a repeat offender, and that his sentence should be enhanced by 4 months based on this aggravating factor.

32.  The enhanced sentence is 12 years.

Step 5: Mitigating factors

33.  Apart from his plea of guilty, there are no mitigating factors that would allow me to reduce this sentence.

Step 6: Totality

34.  I have looked at the total notional sentence after trial of 12 years, and I am of the view that it is a fair, just and balanced sentence in all the circumstances of the offence and the defendant.

FINAL SENTENCE

35.  The sentence after plea is, therefore, 8 years’ imprisonment after granting the defendant the full one-third discount.